G.R. No.

L-8327
ANTONINA CUEVAS, plaintiff-appellant,
vs.
CRISPULO CUEVAS, defendant-appellee.
Pedro D. Maldia for appellant.
Teodoro P. Santiago for appellee.
REYES, J. B. L., J.:
On September 18, 1950, Antonina Cuevas executed a notarized conveyance entitled
"Donacin Mortis Causa," ceding to her nephew Crispulo Cuevas the northern half of
a parcel of unregistered land in barrio Sinasajan, municipality of Penaranda,
Province of Nueva Ecija (Exhibit A). In the same instrument appears the acceptance
of Crispulo Cuevas.
"Subsequently, on May 26, 1952, the donor executed another notarial instrument
entitled "Revocacion de Donacion Mortis Causa" (Exhibit B) purporting to set aside
the preceding conveyance; and on August 26, 1952, she brought action in the Court
of First Instance to recover the land conveyed, on the ground (1) that the donation
being mortis causa, it had been lawfully revoked by the donor; and (2) even it if
were a donation inter vivos, the same was invalidated because (a) it was not
properly accepted; (b) because the donor did not reserve sufficient property for her
own maintenance, and (c) because the donee was guilty of ingratitute, for having
refused to support the donor.
Issues having been joined, and trial had, the Court of First Instance denied the
recovery sought, and Antonina Cuevas thereupon appealed. The Court of Appeals
forwarded the case to this Court because, the case having been submitted on a
stipulation of facts, the appellant raised only questions of law.
The first issue tendered converns the true nature of the deed "Exhibit A"; whether it
embodies a donation inter vivos, or a disposition of property mortis causa revocable
freely by the transferor at any time before death. [[1]]
It has been rules that neither the designation mortis causa, nor the provision that a
donation is "to take effect at the death of the donor", is a controlling criterion in
defining the true nature of donations (Laureta vs. Mata, 44 Phil., 668; Concepcion
vs. Concepcion, 91 Phil., 823). Hence, the crux of the controversy revolves around
the following provisions of the deed of donation:
Dapat maalaman ni Crispulo Cuevas na samantalang ako ay nabubuhay, and lupa
na ipinagkakaloob ko sa kaniya ay ako pa rin and patuloy na mamomosecion,
makapagparatrabaho, makikinabang at ang iba pang karapatan sa pagmamayari ay
sa akin pa rin hanggang hindo ko binabawian ny buhay ng Maykapal at ito naman
ay hindi ko nga iya-alis pagkat kung ako ay mamatay na ay inilalaan ko sa kaniya.

There is an apparent conflict in the expression above quoted, in that the donor
reserves to herself "the right of possession, cultivation, harvesting and other rights
and attributes of ownership while I am not deprived of life by the Almighty"; but
right after, the same donor states that she "will not takle away" (the property)
"because I reserve it for him (the donee) when I die."
The question to be decided is whetehr the donor intended to part with the title to
the property immediately upon the execution of the deed, or only later, when she
had died. If the first, the donation is operative inter vivos; if the second, we would
be confronted with a disposition mortis causa, void from the beginning because the
formalities of testaments were not observed (new Civil Code, Arts. 728 and
828;Heirs of Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. 3568 [[2]]; Tuason vs.
Posadas, 54 Phil., 289; Sent. Trib. Sup. of Spain, 8 July 1943).
We agree with the Court below that the decisive proof that the present donation is
operative inter vivor lies in the final phrase to the effect that the donor will not
dispose or take away ("hindi ko nga iya-alis" in the original) the land "because I am
reserving it to him upon my death." By these words the donor expressly renounced
the right to freely dispose of the property in favor of another (a right essential to full
ownership) and manifested the irrevocability of the conveyance of the naked title to
the property in favor of the donee. As stated in our decision in Bonsato vs. Court of
Appeals, ante, such irrevocability is characteristic of donations inter vivos, because
it is incompatible with the idea of a disposition post mortem. Witness article 828 of
the New Civil Code, that provides:
ART. 828. A will may be revoked by the testator at any time before his death. Any
waiver or restriction of this right is void.
It is apparent from the entire context of the deed of donation that the donor
intended that she should retain the entire beneficial ownership during her lifetime,
but that the naked title should irrevocably pass to the donee. It is only thus that all
the expressions heretofore discussed can be given full effect; and when the donor
stated that she would continue to retain the "possession, cultivation, harvesting and
all other rights and attributes of ownership," she meant only the dominium utile, not
the full ownership. As the Court below correctly observed, the words "rights and
attributes of ownership" should be construed ejusdem generis with the preceding
rights of "possession, cultivation and harvesting" expressly enumerated in the deed.
Had the donor meant to retain full or absolute ownership she had no need to specify
possession, cultivation and harvesting, since all these rights are embodied in full or
absolute ownership; nor would she then have excluded the right of free disposition
from the "rights and attributes of ownership" that she reserved for herself.
Hence, the Court below rightly concluded that the deed Exhibit A was a valid
donation inter vivos, with reservation of beneficial title during the lifetime of the
donor. We may add that it is highly desirable that all those who are called to prepare

or notarize deeds of donation should call the attention of the donors to the
necessity of clearly specifying whether, notwithstanding the donation, they wish to
retain the right to control and dispose at will of the property before their death,
without need of the consent or intervention of the beneficiary, since the express
reservation of such right would be conclusive indication that the liberality is to exist
only at the donor's death, and therefore, the formalities of testaments should be
observed; while, a converso, the express waiver of the right of free disposition
would place theinter vivos character of the donation beyond dispute (Heirs of
Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. 3568).
The argument that there was no sufficient acceptance, because the deed "merely
recites that (1) the donee has duly read all the contents of this donation; (2) that he
'shall fully respect all its terms'; and (3) that 'for the act of benevolence' he is
expressing his gratitude" but there is no show of acceptance (Appellant's brief, p.
7), is without basis. To respect the terms of the donation, and at the same time
express gratitude for the donor's benevolence, constitutes sufficient acceptance, If
the donee did not accept, what had he to be grateful about? We are no longer under
the formulary system of the Roman law, when specific expressions had to be used
under paid of nullity.
Also unmeritoriious is the contention that the donation is void because the donor
failed to reserve enough for ther own support. As we have seen, she expressly
reserved to herself all the benefits derivable from the donated property as long as
she lived. During that time, she suffered no diminution of income. If that was not
enough to support her, the deficiency was not dur to the donation.
Finally, the donee is not rightfully chargeaboe with ingratitude, because it was
expressly stipulated that the donee had a total income of only P30 a month, out of
which he had to support himself, his wife and his two children. Evidently his means
did not allow him to add the donor's support to his own burdens.
Wherefore, the decision appealed from is affirmed. No costs in this instance,
appellant having obtained leave to litigate as a pauper. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, and Concepcion, JJ., concur.

MOLO VS. MOLO

90 Phil 37

FACTS:
1. Mariano Molo died on January 24, 1941 without leaving any forced heir either in
the descending or ascending line.

2. His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz,
Gliceria and Cornelio, all surnamed Molo (oppositors-appellants).
3. Oppositors appellants were the legitimate children of a deceased brother of the
testator.
4. Mariano left two wills, one executed on August 17, 1918 and another executed on
June 20, 1939,
5. In both the 1918 and 1939 wills Juana was instituted as his universal heir.
6. The latter will contains a clause, which expressly revokes the will executed in
1918.
7. Juana Molo filed in the CFI a petition seeking the probate of the will executed in
1939.
8. The court rendered a decision denying the probate of said will on the ground that
the petitioner failed to prove that the same was executed in accordance with law.
9. In view of the disallowance of the will, the widow filed another petition for the
probate of the will executed by the deceased on August 18, 1918.
10. The oppositors filed an opposition to the petition contending that,
notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and
still has the effect of nullifying the prior will of 1918.
11. Likewise, regardless of the revocatory clause, said will of 1918 cannot still be
given effect because of the presumption that the testator himself deliberately
revoked it.
12. The will of 1918 was admitted to probate.
13. Hence this appeal.
ISSUE:
Was the admittance into probate proper?
What is the doctrine of dependent relative revocation?
HELD:
A subsequent will containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the provisions
of law as to the making of wills, cannot produce the effect of annulling the previous
will, inasmuch as said revocatory clause is void.
The doctrine of dependent relative revocation is usually applied where the testator
cancels or destroys a will or executed an instrument intended to revoke a will with a
present intention to make a new testamentary disposition as a substitute for the
old, and the new disposition is not made or, if made, fails to effect for same reason.
The failure of the new testamentary disposition, upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive condition, and hence
prevents the revocation of the original will. But a mere intent to make at some time
a will in place of that destroyed will not render the destruction conditional. It must

appear that the revocation is dependent upon the valid execution of a new will.
Even in the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of 1918 because of the
fact that it is founded on the mistaken belief that the will of 1939 has been validly
executed and would be given due effect.
The theory on which the principle of dependent relative revocation is predicated
in that the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on different occasions and instituted his wife
as his universal heir. There can therefore be no mistake as to his intention of dying
testate.

Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449

(Special Proceedings Difference between Preterition and Disinheritance)
Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her
were her legitimate parents Felix and Paz, and 6 brothers and sisters.
Remedios, one of the sister filed in court a holographic will allegedly executed by
Rosario instituting the former as the sole, universal heir of all her properties. She
prayed that said will be admitted to probate and that letter of administration be
issued to her.
Felix and Paz opposed to the probate of the will on the ground that by the institution
of Remedios as universal heir of the deceased, oppositors who are compulsory
heirs in the direct ascending line were illegally preterited and that in consequence,
the institution is void.
Article 854 provides that preterition of one, some or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir.
Petitioners contention is that the present is a case of ineffective disinheritance
rather than one of preterition drawing the conclusion that Article 854 does not apply
in the case at bar.
Issue: WON the institution of one of the sister of the deceased as the sole,
universal heir preterited the compulsory heirs.
Held: Yes. Where the deceased left no descendants, legitimate or illegitimate, but
she left forced heirs in the direct ascending line her parents, and her holographic

will does not explicitly disinherit them but simply omits their names altogether, the
case is one of preterition of the parents, not a case of ineffective disinheritance.
Preterition consists in the omission in the testators will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, through
mentioned, they are neither instituted as heirs nor are expressly disinherited.
Disinheritance, in turn, is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law.
Where the one sentence will institutes the petitioner as the sole, universal heir and
preterits the parents of the testatrix, and it contains no specific legacies or
bequests, such universal institution of petitioner, by itself, is void. And intestate
succession ensues.

Guevara v. Guevara Digest

Facts:
1. Victorino Guevara executed a will in 1931 wherein he made various bequests t his
wife, stepchildren, wife in the 2nd marriage. He has a legitimate son Ernesto and a
natural daughter Rosario. Therein, he acknowledged Rosario as his natural daughter.
2. In 1933, Victorino died but his last will was never presented for probate nor was
there any settlement proceeding initiated. It appeared that only his son Ernest
possessed the land which he adjudicated to himself. While Rosario who had the will
in her custody, did nothing to invoke the acknowledgment, as well as the devise
given to her.
3. Subsequently, Rosario filed an action for the recovery of her legitime from
Ernesto, a portion of a large parcel of land invoking the acknowledgment contained
in the will and based on the assumption that the decedent died intestate because
his will was not probated. She alleged that the disposition in favor of Ernesto should
be disregarded.
4. The lower court and the Court of Appeals sustained Rosario's theory.
Issue: Whether or not the probate of a will can be dispensed with
RULING: No. Rosario's contention violates procedural law and considered an attempt
to circumvent the last will and testament of the decedent. The presentation of a will
to the court for probate is mandatory and its allowance is essential and
indispensable to its efficacy.

Suppression of the wil is contrary to law and public policy for without probate, the
right of a person to dispose of his property by will may be rendered nugatory.
Dela Cerna v. Potot Digest
Facts:
1. The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint will
where they gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't
have their own child. When Bernabe died, the said will was probated in 1939.
2. Another petition for probate of the same will insofar as Gervasia was concerned
was filed in 1952 but due to the failure of the petitioner (Manuela) to appears, the
same was dismissed in 1954.
3. The CFI held the petition (Bernabe probate) to be null and void as it is contrary to
law. While the Court of Appeals reversed and held that the decree of probate in
1939 was issued by a court of probate jurisdiction and conclusive as to the due
execution of the will. Hence this appeal.
Issue: Whether or not the will is valid
RULING: The Supreme Court affirmed the CA decision and held that Once a decree
of probate becomes final in accordance with the rules of procedure, it is res
judicata. THe final decree of probate entered in 1939 in the CFI of Cebu is
conclusive as to the last will of Bernabe despite the fact that even then the Civil
Code already decreed the invalidity of joint wills. (There was an error on the court
but the decree has now become final.)
The probate court committed an error of law which should have been corrected on
appeals but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision. A decision which is binding upon the whole
world.
Nevertheless, the probate in 1939 only affected the share of Bernabe and could not
include the disposition of the share of his wife which was still alive then, her
properties were still not within the jurisdiction of the court. Hence, the validity of the
will with respect to her, must be on her death, be re-examined and adjudicated de
novo -- since a joint will is considered a separate will of each testator.
Gallanosa v. Arcangel
Facts:
1. Florentino Gallanosa executed a will in 1938 when he was 80 years old. He owned
61 parcels of and at that time. He died in 1939 childless and survived by his brother
Leon. In his will, he bequethed his 1/2 share of the conjugal estate to his second
wife Tecla and if she predecease him (as what occurred), the said share shall be

assigned to the spouses Gallanosa (Pedro & Corazon). Pedro is Tecla's son by her 1st
marriage. He also gave 3 parcels of land to Adolfo, his protege.
2. The said will was admitted to probate with Gallanosa as executor. In 1952, thjhe
legal heirs filed an action for the recovery of said 61 parcels of land. The action was
dismissed on the ground of res judicata. Then, 28 years after probate, another acton
agaisnt Gallanosa for annulment of the will, recovery of the lands alleging fraud and
deceit, was filed. As a result, the lower court set aide the 1939 decree of probate.
Issue: Whether or not a will which has been probated may still be annulled
RULING: No. A final decree of probate is conclusive as to the due execution of the
will. Due execution means that the testator was of sound and disposing mind at the
time of the execution and that he was not acting under duress, menace, fraud or
undue influence. Finally, that it was executed in accordance with the formalities
provided by law.
The period for seeking relief under Rule 38 has already expired, hence the judgment
may only be set aside on the grounds of, 1) lack of jurisdiction or lack of due
process of law, and 2) the judgment was obtained by means of extrinsic collateral
fraud (which must be filed within 4 years from the discovery). Finally, Art. 1410
cannot apply to wills and testament.
[G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D.
QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and
JOSE DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in
an order that has become final and executory still be given effect? This is the issue
that arose from the following antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta
Reyes. The latter died in 1969 without her estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandros death, petitioner, who claims to
have taken care of Alejandro before he died, filed a special proceeding for the
probate of the latters last will and testament. In 1981, the court issued an order
admitting Alejandros will to probate. Private respondents did not appeal from said
order. In 1983, they filed a Motion To Declare The Will Intrinsically Void. The trial
court granted the motion and issued an order, the dispositive portion of which
reads:

WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes

Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will
and testament of Alejandro Dorotheo as intrinsically void, and declaring the
oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the
only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose
respective estates shall be liquidated and distributed according to the laws on
intestacy upon payment of estate and other taxes due to the government. [1]
Petitioner moved for reconsideration arguing that she is entitled to some
compensation since she took care of Alejandro prior to his death although she
admitted that they were not married to each other. Upon denial of her motion for
reconsideration, petitioner appealed to the Court of Appeals, but the same was
dismissed for failure to file appellants brief within the extended period granted.
[2]
This dismissal became final and executory on February 3, 1989 and a
corresponding entry of judgment was forthwith issued by the Court of Appeals on
May 16, 1989. A writ of execution was issued by the lower court to implement the
final and executory Order. Consequently, private respondents filed several motions
including a motion to compel petitioner to surrender to them the Transfer
Certificates of Titles (TCT) covering the properties of the late Alejandro. When
petitioner refused to surrender the TCTs, private respondents filed a motion for
cancellation of said titles and for issuance of new titles in their names. Petitioner
opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside
the final and executory Order dated January 30, 1986, as well as the Order directing
the issuance of the writ of execution, on the ground that the order was merely
interlocutory, hence not final in character. The court added that the dispositive
portion of the said Order even directs the distribution of the estate of the deceased
spouses. Private respondents filed a motion for reconsideration which was denied in
an Order dated February 1, 1991. Thus, private respondents filed a petition before
the Court of Appeals, which nullified the two assailed Orders dated November 29,
1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by
private respondents before the Court of Appeals was a petition under Rule 65 on the
ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that
in issuing the two assailed orders, Judge Angas cannot be said to have no
jurisdiction because he was particularly designated to hear the case. Petitioner
likewise assails the Order of the Court of Appeals upholding the validity of the
January 30, 1986 Order which declared the intrinsic invalidity of Alejandros will that
was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late
Alejandro and to maintain the status quo or lease of the premises thereon to third

parties.[3] Private respondents opposed the motion on the ground that petitioner has
no interest in the estate since she is not the lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer
be disturbed or reopened no matter how erroneous it may be. In setting aside the
January 30, 1986 Order that has attained finality, the trial court in effect nullified the
entry of judgment made by the Court of Appeals. It is well settled that a lower court
cannot reverse or set aside decisions or orders of a superior court, for to do so
would be to negate the hierarchy of courts and nullify the essence of review. It has
been ruled that a final judgment on probated will, albeit erroneous, is binding on the
whole world.[4]
It has been consistently held that if no appeal is taken in due time from a judgment
or order of the trial court, the same attains finality by mere lapse of time. Thus, the
order allowing the will became final and the question determined by the court in
such order can no longer be raised anew, either in the same proceedings or in a
different motion. The matters of due execution of the will and the capacity of the
testator acquired the character of res judicata and cannot again be brought into
question, all juridical questions in connection therewith being for once and forever
closed.[5] Such final order makes the will conclusive against the whole world as to its
extrinsic validity and due execution.[6]
It should be noted that probate proceedings deals generally with the extrinsic
validity of the will sought to be probated,[7] particularly on three aspects:
whether the will submitted is indeed, the decedents last will and testament;
compliance with the prescribed formalities for the execution of wills;
the testamentary capacity of the testator;[8]
and the due execution of the last will and testament. [9]
Under the Civil Code, due execution includes a determination of whether the
testator was of sound and disposing mind at the time of its execution, that he had
freely executed the will and was not acting under duress, fraud, menace or undue
influence and that the will is genuine and not a forgery, [10] that he was of the proper
testamentary age and that he is a person not expressly prohibited by law from
making a will.[11]
The intrinsic validity is another matter and questions regarding the same may still
be raised even after the will has been authenticated. [12] Thus, it does not necessarily
follow that an extrinsically valid last will and testament is always intrinsically
valid. Even if the will was validly executed, if the testator provides for dispositions
that deprives or impairs the lawful heirs of their legitime or rightful inheritance
according to the laws on succession,[13] the unlawful provisions/dispositions thereof
cannot be given effect. This is specially so when the courts had already determined

in a final and executory decision that the will is intrinsically void. Such
determination having attained that character of finality is binding on this Court
which will no longer be disturbed. Not that this Court finds the will to be intrinsically
valid, but that a final and executory decision of which the party had the opportunity
to challenge before the higher tribunals must stand and should no longer be
reevaluated. Failure to avail of the remedies provided by law constitutes
waiver. And if the party does not avail of other remedies despite its belief that it
was aggrieved by a decision or court action, then it is deemed to have fully agreed
and is satisfied with the decision or order. As early as 1918, it has been declared
that public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts must at some point of time fixed by law [14] become final
otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the very object of which the courts were constituted was to put an end to
controversies.[15] To fulfill this purpose and to do so speedily, certain time limits,
more or less arbitrary, have to be set up to spur on the slothful. [16] The only instance
where a party interested in a probate proceeding may have a final liquidation set
aside is when he is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence, [17] which
circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of
the will, as she precisely appealed from an unfavorable order therefrom. Although
the final and executory Order of January 30, 1986 wherein private respondents were
declared as the only heirs do not bind those who are not parties thereto such as the
alleged illegitimate son of the testator, the same constitutes res judicata with
respect to those who were parties to the probate proceedings. Petitioner cannot
again raise those matters anew for relitigation otherwise that would amount to
forum-shopping. It should be remembered that forum shopping also occurs when
the same issue had already been resolved adversely by some other court. [18] It is
clear from the executory order that the estates of Alejandro and his spouse should
be distributed according to the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it
can still be set aside by the trial court. In support thereof, petitioner argues that an
order merely declaring who are heirs and the shares to which set of heirs is entitled
cannot be the basis of execution to require delivery of shares from one person to
another particularly when no project of partition has been filed. [19] The trial court
declared in the January 30, 1986 Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three legitimate children (petitioners herein),
and at the same time it nullified the will. But it should be noted that in the same
Order, the trial court also said that the estate of the late spouses be distributed
according to the laws of intestacy. Accordingly, it has no option but to implement
that order of intestate distribution and not to reopen and again re-examine the
intrinsic provisions of the same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of
successional rights that testacy is preferred to intestacy. [20] But before there could
be testate distribution, the will must pass the scrutinizing test and safeguards
provided by law considering that the deceased testator is no longer available to
prove the voluntariness of his actions, aside from the fact that the transfer of the
estate is usually onerous in nature and that no one is presumed to give - Nemo
praesumitur donare.[21] No intestate distribution of the estate can be done until and
unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is
extrinsically void, the rules of intestacy apply regardless of the intrinsic validity
thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity
that is whether the provisions of the will are valid according to the laws of
succession. In this case, the court had ruled that the will of Alejandro was
extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.
Furthermore, Alejandros disposition in his will of the alleged share in the conjugal
properties of his late spouse, whom he described as his only beloved wife, is not a
valid reason to reverse a final and executory order. Testamentary dispositions of
properties not belonging exclusively to the testator or properties which are part of
the conjugal regime cannot be given effect. Matters with respect to who owns the
properties that were disposed of by Alejandro in the void will may still be properly
ventilated and determined in the intestate proceedings for the settlement of his and
that of his late spouses estate.
Petitioners motion for appointment as administratrix is rendered moot considering
that she was not married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of
Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents'
(petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of
the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the
petition in Special Proceedings No. 591 ACEB No special pronouncement is made as
to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of
Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain
and for the issuance to the same petitioner of letters testamentary, docketed as
Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and
his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will
allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya
(Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner
without objection raised by private respondents. The will contained provisions on
burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament. On the disposition of the testator's
property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by me to
my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at
357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely:
Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who
are claiming to be heirs, with Constantino as the petitioner in Special Proceedings
No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of
tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3) the widow and the
adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by
the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition

with preliminary injunction which was subsequently referred to the Intermediate

Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for
Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and
ordered the trial court to dismiss the petition for the probate of the will of Nemesio
Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present
petition for the review of respondent Court's decision on December 18, 1985 (Rollo,
p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p.
153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157);
the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic
validity of the will sought to be probated and it cannot pass upon the intrinsic
validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition
of "compulsory heirs in the direct line," and does not apply to private respondents
who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a
share in the inheritance but there is a definite distinct intention of the testator in the
case at bar, explicitly expressed in his will. This is what matters and should be in
violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been
pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall
he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA
478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the inheritance, for she is not
in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of
the other respondent Virginia A. Fernandez, whose legal adoption by the testator
has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in the will of
the testator and that both adopted child and the widow were deprived of at least
their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v.
Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions
which do not result in intestacy are the legacies and devises made in the will for
they should stand valid and respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with his brothers and sisters to the
entire inheritance of the testator results in totally abrogating the will because the
nullification of such institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway
for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises
having been provided in the will the whole property of the deceased has been left
by universal title to petitioner and his brothers and sisters. The effect of annulling

the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or in the
will, or in the property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the estate such as
an heir or one who has a claim against the estate like a creditor (Sumilang v.
Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any
gift of an individual item of personal or real property he is called upon to receive
(Article 782, Civil Code). At the outset, he appears to have an interest in the will as
an heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has
no legal standing to petition for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982];
Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper
remedies to correct a grave abuse of discretion of the trial court in not dismissing a
case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of
Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testator's
testamentary capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said court at this
stage of the proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];
Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals,
139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In
Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs. On appeal
the Supreme Court upheld the decision of the probate court, induced by practical
considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the
will in question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by
the surviving spouse was grounded on petitioner's lack of legal capacity to institute
the proceedings which was fully substantiated by the evidence during the hearing
held in connection with said motion. The Court upheld the probate court's order of
dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the
petition deals with the validity of the provisions of the will. Respondent Judge
allowed the probate of the will. The Court held that as on its face the will appeared
to have preterited the petitioner the respondent judge should have denied its
probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will
is resolved, the probate court should meet the issue. (Nepomuceno v. Court of
Appeals,supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following
grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the adopted daughter have been
preterited (Rollo, p. 158). It was denied by the trial court in an order dated January
21, 1985 for the reason that "the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the
merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was
denied by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the
case to progress when on its face the will appears to be intrinsically void as

petitioner and his brothers and sisters were instituted as universal heirs coupled
with the obvious fact that one of the private respondents had been preterited would
have been an exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the testamentary provisions before
the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were properly availed of
by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack
of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de
Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy
of appeal, the Court harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not
afford speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
NERI v AKUTIN 74 PHIL 185MORAN; May 21, 1943
FACTS - Testator Neri indicated in his will that he was leaving all of his properties by
universal title to his children by his secondmarriage with preterition of his children
by his first marriage.- Eleuterio, Agripino, Agapita, Getulia, Rosario and Celerina are
all Neris children by his first marriage.
- The trial court annulled the institution of the heirs and declared total intestacy.The children by the second marriage filed a motion for reconsideration on the
grounds that:1) there is no preterition as to the children of the first marriage have
received their shares in the property left by thetestator 2)assuming that there has
been a preterition, the effect would not be the annulment of the institution of heirs
but simplythe reduction of the bequest made to them.The children by the second marriage anchor their argument on the concept of
heir whose A814 definition is deemed repealed by that of the Code of Civil
Procedure. It is maintained that the word "heredero" under the Civil Code, is
notsynonymous with the term "heir" under the Code of Civil Procedure, and that the
"heir" under the latter Code is nolonger personally liable for the debts of the
deceased as was the "heredero" under the Civil Code
ISSUES

1. WON there is preterition

2. WON there should be annulment of the institution of the heirs and open the
estate to total intestacy
HELD
1. YES, there is preterition- According to the courts findings, none of the children by
the first marriage received their respective shares from the testators property
- Even if clause 8 of the will is invoked (said clause states that the children by his
first marriage had already receivedtheir shares in his property excluding what he
had given them as aid during their financial troubles and the money theyhad
borrowed from him) the Court can rely only on the findings of the trial court that the
inventory indicates that theproperty of Neri has remained intact and that no portion
has been given to the children of the first marriage.- Neri left his property by
universal title to the children by his second marriage and did not expressly
disinherit hischildren by his first marriage but did not leave anything to them. This
fits the case of preterition according to A814, CCwhich provides that the institution
of heirs shall be annulled and intestate succession should be declared open.2. YESThe word "heir" as used in A814 of the Civil Code may not have the meaning that it
has under the Code of CivilProcedure, but this does prevent a bequest from being
made by universal title as is in substance the subject-matter of A814 of the Civil
Code.- It may also be true that heirs under the Code of Civil Procedure may receive
the bequest only after payment of debtsleft by the deceased and not before as
under the Civil Code, but this may have a bearing only upon the question as towhen
succession becomes effective and can in no way destroy the fact that succession
may still be by universal or special title.- Since a bequest may still be made by
universal title and with preterition of forced heirs, its nullity as provided in
article814 still applies there being nothing inconsistent with it in the Code of Civil
Procedure. The basis for its nullity is thenature and effect of the bequest and not its
possible name under the Code of Civil Procedure.- In addition, Secs. 755 and 756 of
the Code of Civil Procedure affected A814 and A851 of the Civil Code. But
thesesections have been expressly repealed by Act No. 2141, thus restoring force
to A814 and A851.

NERI v. AKUTIN
GR No.L-47799, May 21, 1943
74 PHIL 185
FACTS: This is a case where the testator Agripino Neri in his will left all his property
by universal title to the children by his second marriage, the herein respondents,
with omission of the children by his first marriage, the herein petitioner. The
omission of the heirs in the will was contemplated by the testator with the belief

that he had already given each of the children portion of the inheritance,
particularly a land he had abandoned was occupied by the respondents over which
registration was denied for it turned out to be a public land, and an aggregate
amount of money which the respondents were indebted to their father.
ISSUE: Should there be cancellation of the will, in view of the omission of heirs? Is
there disinheritance in this case?
HELD: Yes. The Court annulled the institution of heirs and declared a total intestacy
on the ground that testator left all his property by universal title to the children by
his second marriage, without expressly disinheriting the children by his first
marriage but upon the erroneous belief that he had given them already more shares
in his property than those given to the children by his second marriage.
Disinheritance made without a statement of the cause, if contested, shall annul the
institution of heirs in so far as it is prejudicial to the disinherited person. This is but a
case of preterition which annuls the institution of heirs
G.R. No. L-13876

February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J.:
Action for partition commenced by the spouses Consolacion Florentino and
Francisco Crisologo against Manuel Singson in connection with a residential lot
located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square
meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their
complaint alleged that Singson owned one-half pro-indiviso of said property and
that Consolacion Florentino owned the other half by virtue of the provisions of the
duly probated last will of Da. Leona Singson, the original owner, and the project of
partition submitted to, and approved by the Court of First Instance of Ilocos Sur in
special Proceeding No. 453; that plaintiffs had made demands for the partition of
said property, but defendant refused to accede thereto, thus compelling them to
bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of,
and not owner of one-half pro-indiviso of the property in question, and that,
therefore, she was not entitled to demand partition thereof.
After trial upon the issue thus posed, the lower court rendered judgment as follows:

1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the
house and lot described in the complaint to the extent of each of an undivided 1/2
portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of partition of the said
property within 30 days from receipt of this judgment unless it be shown that the
division thereof may render it unserviceable, in which case the provisions of Art.
498 of the New Civil Code may be applied; .1wph1.t
3. That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Da. Leona Singson, who died single on January 13, 1948, was
the owner of the property in question at the time of her death. On July 31, 1951 she
executed her last will which was admitted to probate in Special Proceeding No. 453
of the lower court whose decision was affirmed by the Court of Appeals in G.R. No.
3605-R. At the time of the execution of the will, her nearest living relatives were her
brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolation, all surnamed Florentino.
Clause IX of her last will reads as follows: .
NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia y que al
mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la
CONSOLACION FLORENTINO:
(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado,
incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle
Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del
appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta
propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y
Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie antes
... (Exhibit F.)
The issue to be decided is whether the testamentary disposition above-quoted
provided for what is calledsustitucion vulgar or for a sustitucion fideicomisaria. This
issue is, we believe, controlled by the pertinent provisions of the Civil Code in force
in the Philippines prior to the effectivity of the New Civil Code, in view of the fact
that the testatrix died on January 13, 1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish
or should be unable to accept the inheritance.

A simple substitution, without a statement of the cases to which it is to apply, shall

include the three mentioned in the next preceeding paragraph, unless the testator
has otherwise provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to
preserve and transmit to a third person the whole or part of the inheritance shall be
valid and effective, provided they do not go beyond the second degree, or that they
are made in favor of persons living at the time of the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this name or by
imposing upon the fiduciary the absolute obligation of delivering the property to a
second heir." ....
In accordance with the first legal provision quoted above, the testator may not only
designate the heirs who will succeed him upon his death, but also provide for
substitutes in the event that said heirs do not accept or are in no position to accept
the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the
obligation, on the part of the latter, to deliver the same to another person, totally or
partially, upon the occurrence of a particular event (6 Manresa, p. 1112).
It is clear that the particular testamentary clause under consideration provides for a
substitution of the heir named therein in this manner: that upon the death of
Consolacion Florentino whether this occurs before or after that of the testatrix
the property bequeathed to her shall be delivered ("se dara") or shall belong in
equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their
forced heirs, should anyone of them die ahead of Consolacion Florentino. If this
clause created what is known as sustitucion vulgar, the necessary result would be
that Consolacion Florentino, upon the death of the testatrix, became the owner of
one undivided half of the property, but if it provided for a sustitution fideicomisaria,
she would have acquired nothing more than usufructuary rights over the same half.
In the former case, she would undoubtedly be entitled to partition, but not in the
latter. As Manresa says, if the fiduciary did not acquire full ownership of the property
bequeathed by will, but mere usufructuary rights thereon until the time came for
him to deliver said property to the fideicomisario, it is obvious that the nude
ownership over the property, upon the death of the testatrix, passed to and was
acquired by another person, and the person cannot be other than the fideicomisario
(6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an obligation be
clearly imposed upon the first heir to preserve and transmit to another the whole or
part of the estate bequeathed to him, upon his death or upon the happening of a
particular event. For this reason, Art. 785 of the old Civil Code provides that a

fideicommissary substitution shall have no effect unless it is made expressly ("de

una manera expresa") either by giving it such name, or by imposing upon the first
heir the absolute obligation ("obligacion terminante") to deliver the inheritance to a
substitute or second heir. In this connection Manresa says: .
Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se
ordeno o encargue al primer heredero, cuando sea tal, que conserve y transmita a
una tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo,
la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de
1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero
el todo o parte del caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del
que el fideicomisario tenga derecho a los bienes de la herencia desde el momento
de la muerte del testador, puesto que ha de suceder a este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento
de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los
herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque
falta el requisito de haberse impuesto a los primeros herederos la obligacion de
conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que
la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion
fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y
transmitir los bienes a un segundo heredero.
A careful perusal of the testamentary clause under consideration shows that the
substitution of heirs provided for therein is not expressly made of the
fideicommissary kind, nor does it contain a clear statement to the effect that
appellee, during her lifetime, shall only enjoy usufructuary rights over the property
bequeathed to her, naked ownership thereof being vested in the brothers of the
testatrix. As already stated, it merely provides that upon appellee's death
whether this happens before or after that of the testatrix her share shall belong
to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the
deceased Da. Leona Singson, established a mere sustitucion vulgar, the
substitution Consolacion Florentino by the brothers of the testatrix to be effective or
to take place upon the death of the former, whether it happens before or after that
of the testatrix.
IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOSvs. MARCELLE

D. VDA.DE RAMIREZ, ET AL.
FACTS:
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with
only his widow as compulsory heir. His will was admitted to probate by the Court of
First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was
appointed administratrix of the estate.
On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the
widow en plenodominio in satisfaction of her legitime; the other part or free
portion shall go to Jorge and Roberto Ramirez en nudapropriedad. Furthermore,
one third (1/3) of the free portion is charged with the widows usufruct and the
remaining two-third (2/3) with a usufruct in favor of Wanda.
-APPEAL for the partitioning of testate estate of Jose Eugenio Ramirez (a Filipino
national, died in Spain on December 11, 1964) among principal beneficiaries:
Marcelle Demoron de Ramirez
-widow
-French who lives in Paris
-received (as spouse) and usufructuary rights over 1/3 of the free portion
Roberto and Jorge Ramirez
-two grandnephews
-lives in Malate
-received the (free portion)
Wanda de Wrobleski
-companion
-Austrian who lives in Spain
-received usufructuary rights of 2/3 of the free portion
-vulgar substitution in favor of Juan Pablo Jankowski and Horacio Ramirez
-Maria Luisa Palacios -administratix

-Jorge and Roberto Ramirez opposed because

a. vulgar substitution in favor of Wanda wrt widows usufruct and in favor of Juan
Pablo Jankowski and Horacio Ramirez, wrt to Wandas usufruct is INVALID because
first heirs (Marcelle and Wanda) survived the testator
b. fideicommissary substitutions are INVALID because first heirs not related to the
second heirs or substitutes within the first degree as provided in Art 863 CC
c. grant of usufruct of real property in favor of an alien, Wanda, violated Art XIII Sec
5
d. proposed partition of the testators interest in the Santa Cruz Building between
widow and appellants violates testators express will to give this property to them
-LC: approved partition
ISSUE: WON the partition is valid insofar as
a. widows legitime
b. substitutions
c. usufruct of Wanda
HELD a. YES, appellants do not question because Marcelle is the widow[1]and
over which he could impose no burden, encumbrance, condition or substitution of
any kind whatsoever[2]
-the proposed creation by the admininstratix in favor of the testators widow of a
usufruct over 1/3 of the free portion of the testators estate cannot be made where
it will run counter to the testators express will. The Court erred for Marcelle who is
entitled to of the estate enpleno dominio as her legitime and which is more
than what she is given under the will is not entitled to have any additional share in
the estate. To give Marcelle more than her legitime will run counter to the testators
intention for as stated above his disposition even impaired her legitime and tended
to favor Wanda.
b. Vulgar substitutions are valid because dying before the testator is not the only
case where a vulgar substitution can be made. Also, according to Art 859 CC, cases
also include refusal or incapacity to accept inheritance therefore it is VALID.
BUT fideicommissary substitutions are VOID because Juan Pablo Jankowski and
Horace Ramirez are not related to Wande and according to Art 863 CC, it validates a
fideicommissary substitution provided that such substitution does not go beyond
one degreefrom the heir originally instituted. Another is that there is no absolute
duty imposed on Wanda to transmit the usufructuary to the substitutes and in fact
the apellee agrees that the testator contradicts the establishment of the

fideicommissary substitution when he permits the properties be subject to usufruct

to be sold upon mutual agreement ofthe usufructuaries and naked owners.
c. YES, usufruct of Wanda is VALID
-Art XIII[3]Sec 5 (1935): Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except toindividuals, corporations,
or associations qualified to acquire or hold land of the public domain in the
Philippines.[4]
The lower court upheld the usufruct thinking that the Constitution covers not only
succession by operation of law but also testamentary succession BUT SC is of the
opinion that this provision does not apply to testamentary succession for otherwise
the prohibition will be for naught and meaningless. Any alien would circumvent the
prohibition by paying money to a Philippine landowner in exchange for a devise of a
piece of land BUT an alienmay be bestowed USUFRUCTUARY RIGHTS over a parcel
of land in the Philippines. Therefore, the usufruct in favor of Wanda, although a real
right, is upheld because it does not vest title to the land in the usufructuary
(Wanda) and it is the vesting of title to land in favor of aliens which is proscribed by
the Constitution.
Decision: Marcelle (as legitime), Jorge and Roberto Ramirez (free portion) in
naked ownership and the usufruct to Wanda de Wrobleski with simple substitution in
favor of Juan Pablo Jankowski and Horace Ramirez
G.R. No. L-56249 May 29, 1987
IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER
TEODORO ARANAS, RAMONA B. VDA. DE ARANAS, ADELIA B. ARANASFERNANDEZ, HEIRS OF THE LATE RODULFO B. ARANAS, ETC., ET
AL., petitioners,
vs.
VICENTE B. ARANAS AND HON. LUIS B. MANTA, respondents.

PARAS, J.:
This is a petition for certiorari which seeks to declare the orders of respondent Judge
dated July 16, 1980 and September 23, 1980 as an exercise of a gross abuse of
discretion amounting to lack of jurisdiction, by ruling that the properties under
Group C of the testate estate of the late Fr.Teodoro Aranas are subject to
remunerative legacies.
The antecedent facts of the case are as follows:

Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953.
He had executed on June 6, 1946 his Last Will and Testament which was admitted to
probate on August 31, 1956. In said Last Will and Testament, Fr. Teodoro Aranas
stipulated the following:
A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas
from his brother Aniceto Aranas and ten (10) parcels of land described in the Will
inherited by the testator from his parents.
B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas
from his brother Carmelo Aranas and ten (10) parcels of land described in the Will
inherited by the testator from his parents.
C. The special administration of the remainder of the estate of the testator by
Vicente Aranas, a faithful and serviceable nephew and designating him also as
recipient of 1/2 of the produce of said properties after deducting the expenses for
the administration and the other 1/2 of the produce to be given to the Catholic
Church for the eternal repose of the testator's soul. Said pertinent provision 1 reads
as follows:
Fourth. It is my will that the lands I had bought from other persons should be
converged and placed under a "special administrator." The special administrator of
these lands, for his office, should receive one half of all the produce from which shall
be deducted the expenses for the administration, and the other half of the produce
should be received by the Roman Catholic Church and should be spent for my soul,
Vicente B. Aranas (Tingting), because he is a faithful and serviceable nephew,
should be the first special administrator of said properties, without bond, until his
death or until he should not want to hold the said office anymore. Anyone of the
sons of my brother Carmelo Aranas can hold the said office of special administrator,
and none other than they. Their father, my brother Carmelo Aranas shall be the one
to decide who among them shall hold the said office, but upon the death of my said
brother Carmelo Aranas, his said sons will have power to select the one among
them ourselves. The special administration is perpetual.
The lower court in its Order 2 dated November 17, 1977 ruled, upon petitioners' (in
Sp. Proc. No. 303) "Motion for the Declaration of Heirs and Partition; and for
Removal of the Administrator (Vicente Aranas) and/or for his Permission to Resign,
and appointment of His Successor" that the "perpetual inalienability and
administration of the portion of the estate of the late Rev. Fr. Teodoro Aranas,
administered by Vicente Aranas, is nun and void after twenty years from January 19,
1954 ... " and declared in the same order the heirs of the late Fr. Teodoro Aranas. It
also declared that "the removal of Vicente Aranas will, therefore, not serve the ends
of justice and for the best interest of all the heirs, particularly with respect to the
portion of the estate taken by the heirs of Aniceto Aranas, represented by the

petitioners herein and the rest of the heirs of Carmelo, represented by the
intervenors, coheirs of Administrator Vicente Aranas." 3
However, the abovesaid Order was subsequently set aside upon the "Urgent Motion
for Reconsideration and to Declare Testate and Intestate Heirs of the late Fr. Teodoro
Aranas," filed by the administrator Vicente Aranas on the allegation that said order
was violative of due process and without legal and factual basis because only the
issue for the removal of the administrator was heard and not the matter of the
declaration of heirs. Thus, the lower court declared in its Order, 4 dated July 16,
1980 that the Order dated November 17, 1977 is "set aside and in the interest of
justice, reopened in order that other heirs, successors-in-interest of Felino
Aranas, 5 could likewise assert their claims, as in the case of the heirs of Aniceto
Aranas and Carmelo Aranas." 6
Their Motion for Reconsideration having been denied by the lower court in its order
dated September 23, 1980, petitioners now come before Us by certiorari raising the
issue that the lower court erred in setting aside its order dated November 17, 1977
and in not applying the provisions on Usufruct of the New Civil Code with respect to
the properties referred to as Group "C" in the Last Will and Testament.
The court ruled in its questioned order that this particular group of properties
(Group "C") is subject to the following:
1. Remunerative legacy by way of usufruct of the net proceeds of 1/2 of the estate
after deducting expenses for administration in favor of Vicente Aranas, during his
lifetime and shall continue an administrator of the estate, and, who, upon his death
or refusal to continue such usufruct, may be succeeded by any of the brothers of
the administrator as selected by their father, Carmelo Aranas, if still alive or one
selected by his sons if, he, Carmelo, is dead; Pursuant to the Will. (Article 562, 563,
564 and 603 of the New Civil Code).
2. Legacy in favor of the Roman Catholic Church, particularly the Archbishop diocese
of Cagayan de Oro City Represented by the Reverend Archbishop Patrick H. Cronin
over one-half of the proceeds of the properties under Group "C." (Article 603, New
Civil Code) and to last for a period of Fifty years from the effective date of the
legacy, Article 605, New Civil Code). (Annex "L-14," p. 87, Rollo)
Assailing the aforementioned ruling, petitioners rely heavily on the doctrine laid
down in Art. 870 of the New Civil Code to wit:
Art. 870. The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void.
A cursory reading of the English translation of the Last Will and Testament shows
that it was the sincere intention and desire of the testator to reward his nephew
Vicente Aranas for his faithful and unselfish services by allowing him to enjoy one-

half of the fruits of the testator's third group of properties until Vicente's death
and/or refusal to act as administrator in which case, the administration shall pass to
anyone chosen by Carmelo Aranas among his sons and upon Carmelo's death, his
sons will have the power to select one among themselves. Vicente Aranas therefore
as a usufructuary has the right to enjoy the property of his uncle with all the
benefits which result from the normal enjoyment (or exploitation) of another's
property, with the obligation to return, at the designated time, either the same
thing, or in special cases its equivalent. This right of Vicente to enjoy the fruits of
the properties is temporary and therefore not perpetual as there is a limitation
namely his death or his refusal. Likewise his designation as administrator of these
properties is limited by his refusal and/or death and therefore it does not run
counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it noted that
Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising
from the usufruct. Neither are the naked owners (the other heirs) of the properties,
the usufruct of which has been given to Vicente Aranas prohibited from disposing of
said naked ownership without prejudice of course to Vicente's continuing usufruct.
To void the designation of Vicente Aranas as usufructuary and/or administrator is to
defeat the desire and the dying wish of the testator to reward him for his faithful
and unselfish services rendered during the time when said testator was seriously ill
or bed-ridden. The proviso must be respected and be given effect until the death or
until the refusal to act as such of the instituted usufructuary/administrator, after
which period, the property can be properly disposed of, subject to the limitations
provided in Art. 863 of the Civil Code concerning a fideicommissary substitution,
said Article says:
A fideicommissary substitution by virtue of which the fiduciary or first heir instituted
is entrusted with the obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and
provided further, that the fiduciary or first heir and the second heir are living at the
time of the death of the testator.
It is contended by petitioners that the ruling made by respondent court dated
November 17, 1977 was already final and not subject to correction as what was set
aside and to be reheard was only regarding the determination of additional heirs.
Such contention is not worthy of credence. Respondents in their Memorandum
allege and it is not disputed by petitioners that the order of November 17, 1977 has
not yet become final because it was received only on January 12, 1978 by the
counsel for respondent Vicente Aranas and the Motion for Reconsideration and to
declare testamentary and intestate heirs dated January 17, 1978 was filed by the
said respondent within the reglementary period. Besides the validity or invalidity of
the usufructuary dispositions would affect the determination of heirs.
As to petitioners' allegation that the order of July 16, 1980 is without basis, the
record shows that during the hearing of the urgent motion for reconsideration and

to declare testamentary and intestate heirs, it was proven conclusively by the said
respondent Vicente B. Aranas that he was instituted as a remunerative legatee per
mandate of the Last Will and Testament by way of usufructuary. Likewise the right of
the Roman Catholic Church as the other usufructuary legatee for the duration of the
statutory lifetime of a corporation, that is, 50 years from the date of the effectivity
of said legacy, was also established. 7
WHEREFORE, the instant petition is hereby dismissed.
SO ORDERED.