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G.R. No.

L-58509 December 7, 1982


FACTS: Marcela Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by the
respondents, among others, on the ground that the alleged hollographic will itself,and not an alleged copy
thereof, must be produced, otherwise it would produce no effect, as held in Gan v. Yap. Lost or destroyed
holographic wills cannot be proved by secondary evidence unlike ordinary wills.

The CFI ruled in favor of the respondents. It held that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14
years from the time of the execution of the will to the death of the decedent, the fact that the original of the
will could not be located shows that the decedent had discarded before his death his allegedly missing
Holographic Will. Hence, this petition.

ISSUE: Whether a holographic will which was lost or cannot be found can be proved by means of a
photostatic copy.

HELD: YES. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the
will by the court after its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic
will has been lost or destroyed and no other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of the testator in said will. It is necessary
that there be a comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard writings of the testator.

In the case of Gan vs. Yap, the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such
will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document
itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may
be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by
other similar means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.

Ajero v CA
GR NO. 106720 Sept. 15, 1994

Facts: The holographic will of the late Annie Sand, who died on Nov. 25, 1982, was submitted for probate.
Petitioners instituted a special proceeding for allowance of the decedent's holographic will and alleged
that at time of its execution, she was of sound mind, not acting under duress, fraud or undue influence.
Private respondents opposed the petition on the grounds that the will contained alterations and
corrections which were not duly signed by decedent. The petition was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He
claimed that the said property could not be conveyed by the decedent in its entirety as she was not it sole

The CA found that the decedent did not comply with the formalities prescribed by law. It alluded to certain
dispositions in the will which were either unsigned, undated, or signed but not dated. It also found that the
erasures, alterations and cancellations made thereon had not been authenticated by the decedent.
Issue: Whether or not the will should be disallowed to probate.

Held: No. Under Article 839 of the NCC, the will shall be disallowed if (1) the formalities required by law
have not been complied with; (2) the testator was insane, or otherwise mentally incapable of making a
will, at the time of its execution; (3) it was executed through force or under duress, or the influence of fear,
or threats; (4) it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person; (5) the signature of the testator was procured by fraud; (6) 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. These lists are exclusive; no other grounds can serve to disallow a will.

Meanwhile, Article 813 of the NCC provides that when a number of dispositions appearing in a
holographic will are signed without being dated, and the last disposition has a signature and date, such
date validates the dispositions preceding it, whatever be the time of prior dispositions. Its requirement
affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator
fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.

Further, notwithstanding non-compliance with the rule in Article 814 of the NCC that in case of insertion,
cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full
signature, the will may still be admitted to probate. Unless the unauthenticated alterations, cancellations
or insertions were made on the date of the holographic will or on testator's signature, their presence does
not invalidate the will itself. The lack of authentication will only result in disallowance of such changes.

G.R. No. L-62952 October 9, 1985


Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him
at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of
Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and
of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and
appointed petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in
the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate
children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and
had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin
Jugo and the petitioner were married in Victoria, Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and
Carmelita his entire estate and the free portion thereof to herein petitioner.

Petitioner filed a petition for the probate of the last Will and Testament of the deceased in the CFI (Rizal)
and asked for the issuance to her of letters testamentary. Respondents filed an opposition alleging that
the execution of the Will was (1) procured by undue and improper influence on the part of the petitioner;
(2) that at the time of the execution of the Will, the testator was already very sick and that petitioner
having admitted her living in concubinage with the testator, she is wanting in integrity and thus, (3) letters
testamentary should not be issued to her.

CFI: denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with
the petitioner, the Will's admission to probate will be an idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident. Petitioner appealed.

CA: reversed the decision and declared the Will to be valid except that the devise in favor of the petitioner
is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The
properties so devised are instead passed on in intestacy to the appellant in equal shares.
Respondents filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last
sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares, without
pronouncement as to costs." The motion was granted by the CA. Petitioners Motion for Reconsideration
was denied.

ISSUE: WON the CA acted in excess of its jurisdiction when after declaring the last Will and Testament of
the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary
provision in favor of herein petitioner.

HELD: NO, the respondent court acted within its jurisdiction when after declaring the Will to be validly
drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the
petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule, however, is not inflexible and absolute. Given
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. The probate of a will might become an Idle ceremony if on its
face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64
O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21
SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

Under Article 739 of the Civil Code, The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;
Article 1028 of the Civil Code provides: The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary provisions.
Article 739 of the Civil Code is against the making of a donation between persons who are living in
adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming
that the recipient may receive. In the case, the very wordings of the Will invalidate the legacy
because the testator admitted he was disposing the properties to a person with whom he had
been living in concubinage.

Polly Cayetano v. Tomas Leonidas

G.R. No. L-54919, May 30, 1984
Gutierrez, Jr., J.

FACTS: Adoracion Campos (Adoracion) died leaving her father, Hermogenes Campos (Hermogenes)
and her sisters, private respondent Nenita Paguia (Nenita), Remedios Lopez, and Marieta Medina. As
Hermogenes was the only compulsory heir, he executed an Affidavit for Adjudication whereby he
adjudicated unto himself the ownership of the entire estate of Adoracion. Eleven months after, Nenita filed
a petition for reprobate of the will of Adoracion, which was allegedly executed in the United States.

In her petition, Nenita alleged that Adoracion was an American citizen at the time of her death and was a
permanent resident of Philadelphia, Penssylvania, USA; that she died in Manila while temporarily residing
with her sister in Malate Manila; that during her lifetime, she made the last will and testament according to
the laws of Penssylvania, USA.

An opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that
the intrinsic provisions of the will are null and void, and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they work injustice and injury to him.

ISSUE: What law governs the intrinsic validity of the will?

HELD: The national law of the decedent must apply.

Under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2). However, intestate and testamentary successions, both with respect to the order
of succession and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country wherein
said property may be found.

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

It is sufficiently established that Adoracion was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania, U.S.A. The law which governs Adoracion's will is the
law of Pennsylvania, U.S.A., which is the national law of the decedent.

Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate
may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not
apply because it would be contrary to the sound and established public policy and would run counter to
the specific provisions of Philippine Law. Jurisprudence provides 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.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article
16(2) and 1039 of the Civil Code, the national law of the decedent must apply.

NB: As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has
declared that the will has been duly authenticated. However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.

The Testate of the decease Molo vs. Molo

G.R. No. L-2538

Facts: Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived, however, by
his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-
appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido
Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on
August 17, 1918, and another executed on June 20, 1939.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition
seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition,
the will was probated. However, upon petition filed by the herein oppositors Luz Gliceria and Cornelio, the
order of the court admitting the will to probate was set aside and the case was reopened. The court then
rendered a decision denying the probate of said will on the ground that the petitioner Juana Juan Vda. de
Molo failed to prove that the same was executed in accordance with law.

Petitioner Juana Juan Vda. de Molo filed another petition for the probate of the will executed by the
deceased on August 17, 1918 in the same court. Again, the same oppositors Luz Gliceria and Cornelio
filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking
the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and
(3) that the will has been subsequently revoked. But before the second petition could be heard, the battle
for liberation came and the records of the case were destroyed.

Petitioner Juana Juan Vda. de Molo filed a new petition on September 14, 1946, similar to the one
destroyed, to which the oppositors filed an opposition based on the same grounds as those contained in
their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order
admitting the will to probate.

Issue: Whether the revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Held: Yes. The Court held that the doctrine laid down in the case of Samson vs. Naval applies in the
present case. In the case of Samson vs. Naval, the court ruled that 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 section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.

Furthermore, the Court also held that there was no valid revocation in the present case as there is no
evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will
because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only
evidence that the Court possess is that when the first will was executed in 1918, Juan Salcedo, who
prepared it, gave the original and copies to the testator himself and apparently they remained in his
possession until he executed his second will in 1939. And when the 1939 will was denied probate on
November 29, 1943, and petitioner Juana Juan Vda. de Molo was asked by her attorney to look for
another will, she found the duplicate copy among the papers or files of the testator. She did not find the
original. If it can be inferred that the testator deliberately destroyed the 1918 will because of his
knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to
his wife, the most logical step for the testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in
the possession of petitioner.

The earlier will can still be probated under the principle of dependent relative revocation. The doctrine
applies when a testator cancels or destroys a will or executes an instrument intended to revoke a will with
the intention to make a new testamentary disposition as substitute for the old, and the new disposition
fails of effect for some reason. The rule is established that where the act of destruction is connected with
the making of another will so as fairly to raise the inference that the testator meant the revocation of the
old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will
intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full



FACTS: Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with neither
descendants nor ascendants. She executed a last will and testament wherein she bequeathed to her
collateral relatives (brothers, sisters, nephews and nieces) all her properties, and designated Rosario Tan
or, upon the latter's death, Jesus Fran, as executor to serve without bond.

On 15 July 1972, Jesus Fran filed a petition with the CFI of Cebu for the probate of Remedios' last will
and testament. The petition alleged that Rosario Tan is not physically well and, therefore, will not be
assuming the position of administratrix.

Private respondents, who are sisters of the deceased, filed a manifestation alleging that they needed time
to study the petition because some heirs who are entitled to receive their respective shares have been
intentionally omitted therein, and praying that they be given ample time to file their opposition, after which
the hearing be reset to another date.

Private respondents did not file any opposition. Instead, they a "Withdrawal of Opposition to the
Allowance of Probate of the Will" wherein they expressly manifested, with their "full knowledge and
consent that they have no objection of the allowance of the will of the late Remedios Mejia Vda. de
Tiosejo," and that they have "no objection to the issuance of letters testamentary in favor of petitioner, Dr.
Jesus Fran." No other party filed an opposition. The petition thus became uncontested.

On 13 November 1972, the probate court rendered a decision admitting to probate the will of the testatrix,
and appointing petitioner Fran as executor thereof.

Subsequently, a Project of Partition based on the dispositions made in the will and signed by all the
devisees and legatees, with the exception of Luis Fran, Remedios C. Mejia and respondent Concepcion
M. Espina, was submitted by the executor for the court's approval. Said legatees and devisees submitted
certifications wherein they admit receipt of a copy of the Project of Partition together with the notice of
hearing, and state that they had no objection to its approval.

After the hearing on the Project of Partition, the court issued its Order of approving the same, declaring
the parties therein as the only heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo, directing the
administrator to deliver to the said parties their respective shares and decreeing the proceedings closed.

On 1 October 1979, private respondents filed an Omnibus Motion for Reconsideration of the probate
judgment and the Order of partition. They allege that: (a) they were not furnished with a copy of the will;
(b) the will is a forgery; (c) they were not notified of any resolution or order on their manifestation
requesting time within which to file their opposition, or of the order authorizing the clerk of court to receive
the evidence for the petitioner, or of the order closing the proceedings; (d) the reception of evidence by
the clerk of court was void per the ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of partition contains
no notice of hearing and they were not notified thereof; (f) the petitioner signed the project of partition as
administrator and not as executor, thereby proving that the decedent died intestate; (g) the petitioner did
not submit any accounting as required by law; and (h) the petitioner never distributed the estate to the
devisees and legatees.

Respondent Judge proceeded with the hearing of the Omnibus Motion for Reconsideration. The
respondent Judge likewise issued an Order on the same date stating that unless he received a restraining
order from this Court within twenty (20) days therefrom, he will reopen Sp. Proc. No. 3309-R.

Petitioners filed a Supplemental Petition asking this Court to restrain respondent Judge from reopening
the case.

However, on the same date, before the restraining order was served on him; respondent Judge issued the
impugned order declaring the testamentary dispositions of the will void, finding the signature of the late
Remedios M. Vda. de Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No. 3309-R and
converting the same into an intestate proceeding.

ISSUE: Whether or not the testate proceedings can be reopened.

HELD: NO. It is not difficult to see that private respondents had lost their right to file a petition for relief
from judgment, it appearing that their omnibus motion for reconsideration was filed exactly six (6) years,
ten (10) months and twenty-two (22) days after the rendition of the decision, and six (6) years, one (1)
month and thirteen (13) days after the court issued the order approving the Project of Partition, to which
they voluntarily expressed their conformity through their respective certifications, and closing the testate

The probate judgment, long final and undisturbed by any attempt to unsettle it, had inevitably passed
beyond the reach of the court below to annul or set the same aside, by mere motion, on the ground that
the will is a forgery. Settled is the rule that the decree of probate is conclusive with respect to the due
execution of the will and it cannot be impugned on any of the grounds authorized by law, except that of
fraud, in any separate or independent action or proceeding. We wish also to advert to the related doctrine
which holds that final judgments are entitled to respect and should not be disturbed; otherwise, there
would be a wavering of trust in the courts.
Reasons of public policy, judicial orderliness, economy and judicial time and the interests of litigants, as
well as the peace and order of society, all require that stability be accorded the solemn and final
judgments of the courts or tribunals of competent jurisdiction. This is so even if the decision is incorrect or,
in criminal cases, the penalty imposed is erroneous.


Private respondents now claim that the trial court never acquired jurisdiction over the petition because
only the English translation of the will and not a copy of the same was attached to the petition.

In Santos vs. Castillo: It is not necessary that the original of the will be attached to the petition. In the first,
it ruled: "The original of said document [the will] must be presented or sufficient reasons given to justify
the nonpresentation of said original and the acceptance of the copy or duplicate thereof."

In the instant case, a copy of the original will and its English translation were attached to the petition as
Annex "A" and Annex "A-1", respectively, and made integral parts of the same. It is to be presumed that
upon the filing of the petition the Clerk of Court, or his duly authorized subordinate, examined the petition
and found that the annexes mentioned were in fact attached thereto. If they were not, the petition cannot
be said to have been properly presented and the Clerk of Court would not have accepted it for docketing.
Under Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall receive and file all pleadings and
other papers properly presented, endorsing on each such paper the time when it was filed. The
presumption of regularity in the performance of official duty militates against private respondents' claim
that Annex "A" of the petition was not in fact attached thereto.

The non-distribution of the estate, which is vigorously denied by the petitioners, is not a ground for the re-
opening of the testate proceedings. A seasonable motion for execution should have been filed. In De
Jesus vs. Daza, this Court ruled that if the executor or administrator has possession of the share to be
delivered, the probate court would have jurisdiction within the same estate proceeding to order him to
transfer that possession to the person entitled thereto. This is authorized under Section 1, Rule 90 of the
Rules of Court. However, if no motion for execution is filed within the reglementary period, a separate
action for the recovery of the shares would be in order. As We see it, the attack on the Order was just a
clever ploy to give asemblance of strength and substance to the Omnibus Motion for Reconsideration by
depicting therein a probate court committing a series of fatal, substantive and procedural blunders, which
We find to be imaginary, if not deliberately fabricated.

Agapay vs Palang


Miguel Palang married Carlina Palang in 1949. He left to work in Hawaii a few months after the wedding.
Their only child Herminia was born in 1950. When Miguel returned for good in 1972, he refused to live
with Carlina.

In 1973, Miguel who was then 63 years old contracted a subsequent marriage with 19-year old Erlinda
Agapay. Two months earlier, they jointly purchased a riceland. Ahouse and lot was likewise purchased,
allegedly by Erlinda as the sole vendee. Miguel and Erlindas cohabitation produced a
son named Kristopher.

1975, Miguel and Carlina executed a Deed of Donation as a form of compromise agreement to settle and
end a case filed by the latter. The parties therein agreed to donate their conjugal property consisting of
six parcels of land to their only child, Herminia.

In 1979, Miguel and Erlinda were convicted of concubinage upon Carlinas complaint. Two years later,
Miguel died. Carlina and Herminia instituted a case for recovery of ownership and possession with
damages against Erlinda, seeking to get back the riceland and the house and lot allegedly purchase by
Miguel during his cohabitation with Erlinda. The lower court dismissed the complaint but CA reversed the
1. Who owns the riceland?
2. Who owns the house and lot?
3. Does the trial courts decision adopting the compromise agreement partake the nature of judicial
confirmation of the separation of property between Miguel and Carlina and the termination of their
conjugal partnership?
4. Can Kristophers status and claim as an illegitimate son and heir be adjudicated in an ordinary civil
action for recovery of ownership and possession?
5. Should Kristopher Palang be considered as party-defendant in the case?


1. The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of
law applicable here is Article 148 of the Family Code providing for cases of cohabitation when a man and
a woman who are not capacitated to marry each other live exclusively with each other as husband and
wife without the benefit of marriage or under a void marriage. While Miguel and Erlinda contracted
marriage on July 15, 1973, said union was patently void because the earlier marriage of Miguel and
Carlina was still susbsisting and unaffected by the latters de facto separation.

Under Article 148, only the properties acquired by both of the parties through theiractual joint
contribution of money, property or industry shall be owned by them incommon in proportion to their
respective contributions. It must be stressed that actual contribution is required by this provision, in
contrast to Article 147 which states that efforts in the care and maintenance of the family and household,
are regarded as contributions to the acquisition of common property by one who has no salary or income
or work or industry. If the actual contribution of the party is not proved, there will be no co-ownership and
no presumption of equal shares.

Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and had a
sari-sari store. Worth noting is the fact that on the date ofconveyance, May 17, 1973, she was only
around 22 years of age and Miguel was already 64 and a pensioner of the U.S. Government. Considering
her youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the
purchase price of subject property, there being no proof of the same.

In the nature of an afterthought, Erlinda claims that the riceland was bought 2 months before she and
Miguel actually cohabited to exclude their case from the operation of Article 148 of the Family Code. Proof
of the precise date when they commenced their adulterous cohabitation not having been adduced, we
cannot state definitively that the riceland was purchased even before they started living together. In any
case, even assuming that the subject property was bought before cohabitation, the rules of co-ownership
would still apply and proof of actual contribution would still be essential.

Since Erlinda failed to prove that she contributed money to the purchase price of the riceland, there is no
basis to justify her co-ownership with Miguel over the same. Consequently, the riceland should revert to
the conjugal partnership property of Miguel and Carlina.

2. With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September 23,
1975 when she was only 22 years old. The testimony of the notary public who prepared the deed
of conveyance for the property reveals the falsehood of this claim. Atty. Constantino Sagun testified that
Miguel provided the money for the purchase price and directed that Erlindas name alone be placed as
the vendee. The transaction was properly a donation made by Miguel to Erlinda, but one which was
clearly void and inexistent by Article 739 of the Civil Code because it was made between persons guilty of
adultery or concubinage at the time of the donation. Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donations between spouses now applies to donations between
persons living together as husband and wife without a valid marriage, for otherwise, the condition of those
who incurred guilt would turn out to be better than those in legal union.
3. No. Separation of property between spouses during the marriage shall not take place except
by judicial order or without judicial conferment when there is an express stipulation in the marriage
settlements. The judgment which resulted from the parties compromise was not specifically and
expressly for separation of property and should not be so inferred.

4. No. Questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should be ventilated in the proper probate
court or in a special proceedinginstituted for the purpose and cannot be adjudicated in the instant ordinary
civil action which is for recovery of ownership and possession.

5. No. Kristopher, not having been impleaded, was not a party to the case at bar. His mother, Erlinda,
cannot be called his guardian ad litem for he was not involved in the case at bar. (Erlinda Agapay vs.
Carlina Palang, G.R. No. 116668, July 28 1997).

GALOLO, and CELSA AGAPE, petitioners,

Unless legally flawed, a testators intention in his last will and testament is its life and soul which deserves
reverential observance.

Facts: Torcuato J. Reyes executed his last will and testament. Reyes died and private respondent filed a
petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin. The recognized
natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed
Reyes, and the deceased natural children with Celsa Agape, namely Lyn and Marites Agape, filed an
opposition with the following allegations: a) that the last will and testament of Reyes was not executed
and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue
and improper influence upon the testator at the time of the execution of the will.
The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes,
the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle
who was still then alive and their marriage was never annulled. Thus Asuncion can not be a compulsory
heir for her open cohabitation with Reyes was violative of public morals.
The trial court declared that the will was executed in accordance with the formalities prescribed by law. It,
however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the
deceased Reyes, and, therefore, their relationship was an adulterous one.
The common denominator is the immoral meretrecious, adulterous and adulterous and illicit relationship
existing between the testator and the devisee prior to the death of the testator, which constituted the sole
and primary consideration for the devise or legacy, thus making the will intrinsically invalid.
The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was
declared null and void for being contrary to law and morals.
The Court of Appeals promulgated the assailed decision which affirmed the trial courts decision admitting
the will for probate but the modification that paragraph II including subparagraphs (a) and (b) were
declared valid.


Held: The case at bar arose from the institution of the petition for the probate of the will of the late
Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the
testator had animus testandi; (2) whether or not vices of consent attended the execution of the will; and
(3) whether or not the formalities of the will had been complied with.
Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the
will. As a result, the declaration of the testator that Asuncion Oning Reyes was his wife did not have to be
scrutinized during the probate proceedings. The propriety of the institution of Oning Reyes as one of the
devisees/legatees already involved inquiry on the wills intrinsic validity and which need not be inquired
upon by the probate court.

Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real
properties to his wife, Asuncion Oning Reyes. There was never an open admission of any illicit
relationship. In the case of Nepomuceno, the testator admitted that he was already previously married
and that he had an adulterous relationship with the devisee.
We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that
Asuncion Reyes was still married to another during the time she cohabited with the testator. The
testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or existence
of Lupo Ebarle, the supposed husband of Asuncion. Thus: The foregoing testimony cannot go against the
declaration of the testator that Asuncion Oning Reyes is his wife.

In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the
husband is competent evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during
the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either
because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down
paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and
morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to
overcome the very declaration of the testator that Asuncion Reyes is his wife.

In the elegant language of Justice Moreland written decades ago, he said- A will is the testator speaking
after death. Its provisions have substantially the same force and effect in the probate court as if the
testator stood before the court in full life making the declarations by word of mouth as they appear in the
will. That was the special purpose of the law in the creation of the instrument known as the last will and
testament. Men wished to speak after they were dead and the law, by the creation of that instrument,
permitted them to do so. All doubts must be resolved in favor of the testators having meant just what he


FACTS: Private respondent Rosalia S. Lugod is the only child of spouses Juan C. Sanchez and Maria
Villafranca while private respondents Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod are the
legitimate children of Rosalia. Petitioners Rolando, Florida Mierly, Alfredo and Myrna, all surnamed
Sanchez, are the illegitimate children of Juan C. Sanchez.Following the death of her mother, Rosalia filed
a petition for letters of administration over the estate of her mother and the estate of her father who was at
the time in state of senility. Before the administration proceedings formally be terminated and closed,
Rosalias father, died. Petitioners as heirs of Juan C. Sanchez, filed a petition for letters of administration
over the intestate estate of Juan C. Sanchez, which petition was opposed by Rosalia. On October 30,
1969, however, Rosalia and petitioners, assisted by their respective counsels, executed a compromise
agreement wherein they agreed to divide the properties enumerated therein of the late Juan C. Sanchez.
Rosalia was appointed by the trial court, and took her oath as the administratrix of her father's intestate
estate. Petitioners filed a motion to require administratrix Rosalia, to deliver deficiency of 24 hectares and
or to set aside compromise agreement. On April 13, 1970, Rosalia and petitioners entered into and
executed a memorandum of agreement which modified the compromise agreement. On October 25,
1979, petitioners filed a motion to require Rosalia to submit a new inventory and to render an accounting
over properties not included in the compromise agreement. They likewise filed a motion to defer the
approval of the compromise agreement, in which they prayed for the annulment of the compromise
agreement on the ground of fraud. The trial court issued an order directing Rosalia to submit a new
inventory of properties under her administration and an accounting of the fruits thereof, which prompted
Rosalia to file a rejoinder. Petitioners filed a motion to change administratrix to which Rosalia filed an

The trial court rendered a decision in favor of petitioners. Rosalia filed a motion for reconsideration.

The CA initially dismissed private respondent's petition. Acting, however, on a motion for reconsideration
and a supplemental motion for reconsideration Respondent Court thereafter reinstated private
respondents petition in a resolution. The CA rendered its assailed Decision granting the petition, setting
aside the trial court's decision and declaring the modified compromise agreement valid and binding.

ISSUES: Is a petition for certiorari, in lieu of appeal, the proper remedy to correct orders of a probate
court nullifying certain deeds of sale and, thus, effectively passing upon title to the properties subject of
such deeds?

Is a compromise agreement partitioning inherited properties valid even without the approval of the trial
court hearing the intestate estate of the deceased owner?

HELD: The petition is not meritorious.

First Issue: Propriety of Certiorari

As a probate court, the trial court was exercising judicial functions when it issued its assailed resolution.
The said court had jurisdiction to act in the intestate proceedings involved in this case with the caveat
that, due to its limited jurisdiction, it could resolve questions of title only provisionally. It is hornbook
doctrine that in a special proceeding for the probate of a will, the question of ownership is an extraneous
matter which the probate court cannot resolve with finality. This pronouncement no doubt applies with
equal force to an intestate proceeding as in the case at bar. In the instant case, the trial court rendered a
decision declaring as simulated and fictitious all the deeds of absolute sale which, Juan C. Sanchez and
Maria Villafranca executed in favor of their daughter and grandchildren. The trial court ruled further that
the properties covered by the said sales must be subject to collation. Citing Article 1409 (2) of the Civil
Code, the lower court nullified said deeds of sale and determined with finality the ownership of the
properties subject thereof. In doing so, it clearly overstepped its jurisdiction as a probate court.
Jurisprudence teaches: A probate court or one in charge of proceedings whether testate or intestate
cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed
to belong to outside parties. All that the said court could do as regards said properties is to determine
whether they should or should not be included in the inventory or list of properties to be administered by
the administrator. If there is no dispute, well and good, but if there is, then the parties, the administrator,
and the opposing parties have to resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so. Furthermore, the trial court committed grave abuse
of discretion when it rendered its decision in disregard of the parties compromise agreement. Such
disregard, on the ground that the compromise agreement was not approved by the court,is tantamount to
an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation
and within the bounds of law. Since the trial court exceeded its jurisdiction, a petition for certiorari is
certainly a proper remedy. Indeed, it is well-settled that an act done by a probate court in excess of its
jurisdiction may be corrected by certiorari.

Second Issue: Validity of Compromise Agreement

Petitioners contend that, because the compromise agreement was executed during the pendency of the
probate proceedings, judicial approval is necessary to shroud it with validity. They stress that the probate
court had jurisdiction over the properties covered by said agreement. They add that Petitioners Florida
Mierly, Alfredo and Myrna were all minors represented only by their mother/natural guardian, Laureta
Tampus. These contentions lack merit. Article 2028 of the Civil Code defines a compromise agreement as
a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one
already commenced. Being a consensual contract, it is perfected upon the meeting of the minds of the
parties. Judicial approval is not required for its perfection. In the case before us, it is ineludible that the
parties knowingly and freely entered into a valid compromise agreement. Adequately assisted by their
respective counsels, they each negotiated its terms and provisions for four months; in fact, said
agreement was executed only after the fourth draft. Since this compromise agreement was the result of a
long drawn out process, with all the parties ably striving to protect their respective interests and to come
out with the best they could, there can be no doubt that the parties entered into it freely and voluntarily.
Accordingly, they should be bound thereby.To be valid, it is merely required under the law to be based on
real claims and actually agreed upon in good faith by the parties thereto. In opposing the validity and
enforcement of the compromise agreement, petitioners harp on the minority of Florida Mierly, Alfredo and
Myrna. Citing Article 2032 of the Civil Code, they contend that the courts approval is necessary in
compromises entered into by guardians and parents in behalf of their wards or children. However, we
observe that although denominated a compromise agreement, the document in this case is essentially a
deed of partition, pursuant to Article 1082 of the Civil Code which provides that every act which is
intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition,
although it should purport to be a sale, an exchange, a compromise, or any other transaction. For a
partition to be valid, Section 1, Rule 74 of the Rules of Court, requires the concurrence of the following
conditions: (1) the decedent left no will; (2) the decedent left no debts, or if there were debts left, all had
been paid; (3) the heirs and liquidators are all of age, or if they are minors, the latter are represented by
their judicial guardian or legal representatives; and (4) the partition was made by means of a public
instrument or affidavit duly filed with the Register of Deeds. We find that all the foregoing requisites are
present in this case. We therefore affirm the validity of the parties compromise agreement/partition in this
case. The petitioners likewise assail as void the provision on waiver contained in No. 8 of the
compromise, because it allegedly constitutes a relinquishment by petitioners of a right to properties which
were not known. They argue that such waiver is contrary to law, public policy, morals or good custom. The
Court disagrees. The assailed waiver pertained to their hereditary right to properties belonging to the
decedent's estate which were not included in the inventory of the estates properties. It also covered their
right to other properties originally belonging to the spouses Juan Sanchez and Maria Villafranca de
Sanchez which have been transferred to other persons. In addition, the parties agreed in the compromise
to confirm and ratify said transfers. The waiver is valid because, contrary to petitioners protestation, the
parties waived a known and existing interest -- their hereditary right which was already vested in them by
reason of the death of their father. Article 777 of the Civil Code provides that the rights to the succession
are transmitted from the moment of death of the decedent. Hence, there is no legal obstacle to an heirs
waiver of his/her hereditary share even if the actual extent of such share is not determined until the
subsequent liquidation of the estate. Finally, petitioners contend that Rosalias alleged fraudulent acts,
specifically her concealment of some of the decedent's properties, attended the actual execution of the
compromise agreement. In the absence of convincing and clear evidence to the contrary, the allegation of
fraud and deception cannot be successfully imputed to respondent Rosalia who must be presumed to
have acted in good faith. Not only did the parties knowingly enter into a valid compromise agreement;
they even amended it when they realized some errors in the original. Such correction emphasizes the
voluntariness of said deed. It is also significant that all the parties, including the then minors, had already
consummated and availed themselves of the benefits of their compromise. This Court has consistently
ruled that a party to a compromise cannot ask for a rescission after it has enjoyed its benefits. By their
acts, the parties are ineludibly estopped from questioning the validity of their compromise agreement.
Bolstering this conclusion is the fact that petitioners questioned the compromise only nine years after its
execution, when they filed with the trial court their Motion to Defer Approval of Compromise Agreement.
Corollarily, petitioners contend that the CA gravely abused its discretion in deeming Special Proceedings
Nos. 44-M and 1022 CLOSED and TERMINATED, arguing that there was as yet no order of distribution of
the estate pursuant to Rule 90 of the Rules of Court. They add that they had not received their full share
thereto. We disagree. Under Section 1, Rule 90 of the Rules of Court, an order for the distribution of the
estate may be made when the debts, funeral charges, and expenses of administration, the allowance to
the widow, and inheritance tax, if any, had been paid. This order for the distribution of the estates residue
must contain the names and shares of the persons entitled thereto. The payment of the indebtedness of
the estates of Juan C. Sanchez and Maria Villafranca was shouldered by Rosalia, who also absorbed or
charged against her share the advances of Rolando T. Lugod in compliance with Article 1061 of the Civil
Code on collation. Furthermore, the compromise of the parties, which is the law between them, already
contains the names and shares of the heirs to the residual estate, which shares had also been delivered.
All the foregoing show clearly that the probate court had essentially finished said intestate proceedings
which, consequently, should be deemed closed and terminated.

Third Issue: Fraud and Collation

Petitioners fault Respondent Court for not ordering Rosalia to deliver to them the deficiency as allegedly
provided under the compromise agreement. They further contend that said court erred in not directing the
provisional inclusion of the alleged deficiency in the inventory for purposes of collating the properties
subject of the questioned deeds of sale. We see no such error. In the trial court, there was only one
hearing conducted, and it was held only for the reception of the evidence of Rosalia to install her as
administratix of the estate of Maria Villafranca. There was no other evidence, whether testimonial or
otherwise, received, formally offered to, and subsequently admitted by the probate court below; nor was
there a trial on the merits of the parties conflicting claims. In fact, the petitioners moved for the deferment
of the compromise agreement on the basis of alleged fraudulent concealment of properties -- NOT
because of any deficiency in the land conveyed to them under the agreements. Hence, there is no hard
evidence on record to back up petitioner's claims. Similarly, petitioners allegations of fraud in the
execution of the questioned deeds of sale are bereft of substance, in view of the palpable absence of
evidence to support them. The legal presumption of validity of the questioned deeds of absolute sale,
being duly notarized public documents, has not been overcome. On the other hand, fraud is not
presumed. It must be proved by clear and convincing evidence, and not by mere conjectures or
speculations. These deeds of sale did not involve gratuitous transfers of future inheritance; these were
contracts of sale perfected by the decedents during their lifetime. Hence, the properties conveyed thereby
are not collationable because, essentially, collation mandated under Article 1061 of the Civil Code
contemplates properties conveyed inter vivos by the decedent to an heir by way of donation or other
gratuitous title. In any event, these alleged errors and deficiencies regarding the delivery of shares
provided in the compromise, concealment of properties and fraud in the deeds of sale are factual in
nature which, as a rule, are not reviewable by this Court in petitions under Rule 45.


FACTS: On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a Deed of Donation of
Real Property covering seven parcels of land in favor of her niece Ursulina Ganuelas (Ursulina), one of
herein petitioners.

The pertinent provision of the deed of donation reads, quoted verbatim:

That, for and in consideration of the love and affection which the DONOR has for the DONEE, and of the
faithful services the latter has rendered in the past to the former, the said DONOR does by these presents
transfer and convey, by way of DONATION, unto the DONEE the property above, described, to become
effective upon the death of the DONOR; but in the event that the DONEE should die before the DONOR,
the present donation shall be deemed rescinded and of no further force and effect.

On June 10, 1967, Celestina executed a document denominated as Revocation of Donation purporting to
set aside the deed of donation. More than a month later or on August 18, 1967, Celestina died without
issue and any surviving ascendants and siblings.

After Celestinas death, Ursulina had been sharing the produce of the donated properties with private
respondents Leocadia G. Flores, et al., nieces of Celestina.

In 1982, or twenty-four years after the execution of the Deed of Donation, Ursulina secured the
corresponding tax declarations, in her name, over the donated properties, to wit: Tax Declarations Nos.
18108, 18109, 18110, 18111, 18112, 18113 and 18114, and since then, she refused to give private
respondents any share in the produce of the properties despite repeated demands.

Private respondents were thus prompted to file on May 26, 1986 with the RTC of San Fernando, La Union
a complaint against Ursulina, along with Metodio Ganuelas and Antonio Ganuelas who were alleged to be
unwilling plaintiffs. The complaint alleged that the Deed of Donation executed by Celestina in favor of
Ursulina was void for lack of acknowledgment by the attesting witnesses thereto before notary public Atty.
Henry Valmonte, and the donation was a disposition mortis causa which failed to comply with the
provisions of the Civil Code regarding formalities of wills and testaments, hence, it was void. The
plaintiffs-herein private respondents thus prayed that judgment be rendered ordering Ursulina to return to
them as intestate heirs the possession and ownership of the properties. They likewise prayed for the
cancellation of the tax declarations secured in the name of Ursulina, the partition of the properties among
the intestate heirs of Celestina, and the rendering by Ursulina of an accounting of all the fruits of the
properties since 1982 and for her to return or pay the value of their shares.

The defendants-herein petitioners alleged in their Answer that the donation in favor of Ursulina was inter
vivos as contemplated under Article 729 of the Civil Code, hence, the deed did not have to comply with
the requirements for the execution of a valid will; the Revocation of Donation is null and void as the
ground mentioned therein is not among those provided by law to be the basis thereof; and at any rate, the
revocation could only be legally enforced upon filing of the appropriate complaint in court within the
prescriptive period provided by law, which period had, at the time the complaint was filed, already lapsed.

The Court renders judgment declaring null and void the Deed of Donation of Real Property executed by
Celestina Ganuelas, and orders the partition of the estate of Celestina among the intestate heirs.

The trial court also held that the absence of a reservation clause in the deed implied that Celestina
retained complete dominion over her properties, thus supporting the conclusion that the donation is mortis
causa, and that while the deed contained an attestation clause and an acknowledgment showing the
intent of the donor to effect a postmortem disposition, the acknowledgment was defective as only the
donor and donee appear to have acknowledged the deed before the notary public, thereby rendering the
entire document void.

Lastly, the trial court held that the subsequent execution by Celestina of the Revocation of Donation
showed that the donor intended the revocability of the donation ad nutum, thus sustaining its finding that
the conveyance was mortis causa.

On herein petitioners argument that the Revocation of Donation was void as the ground mentioned
therein is not one of those allowed by law to be a basis for revocation, the trial court held that the legal
grounds for such revocation as provided under the Civil Code arise only in cases of donations inter vivos,
but not in donations mortis causa which are revocable at will during the lifetime of the donor. The trial
court held, in any event, that given the nullity of the disposition mortis causa in view of a failure to comply
with the formalities required therefor, the Deed of Revocation was a superfluity.

Hence, the instant petition for review

In a letter of March 16, 1998, private respondent Corazon Sipalay, reacting to this Courts January 28,
1998 Resolution requiring private respondents to SHOW CAUSE why they should not be disciplinarily
dealt with or held in contempt for failure to submit the name and address of their new counsel, explains
that they are no longer interested in pursuing the case and are willing and ready to waive whatever rights
they have over the properties subject of the donation. Petitioners, who were required to comment on the
letter, by Comment of October 28, 1998,[21] welcome private respondents gesture but pray that for the
sake of enriching jurisprudence, their [p]etition be given due course and resolved.

ISSUE: whether the donation is inter vivos or mortis causa?

HELD: MORTIS CAUSA. Crucial in the resolution of the issue is the determination of whether the donor
intended to transfer the ownership over the properties upon the execution of the deed.

Donation inter vivos differs from donation mortis causa in that in the former, the act is
immediately operative even if the actual execution may be deferred until the death of the donor,
while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-
The distinction between a transfer inter vivos and mortis causa is important as the validity or revocation of
the donation depends upon its nature. If the donation is inter vivos, it must be executed and accepted with
the formalities prescribed by Articles 748 and 749 of the Civil Code, except when it is onerous in which
case the rules on contracts will apply. If it is mortis causa, the donation must be in the form of a will, with
all the formalities for the validity of wills, otherwise it is void and cannot transfer ownership.

The distinguishing characteristics of a donation mortis causa are the following:

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the ownership (full or naked) and control of the property
while alive;

2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the
properties conveyed;

3. That the transfer should be void if the transferor should survive the transferee.

In the donation subject of the present case, there is nothing therein which indicates that any right, title or
interest in the donated properties was to be transferred to Ursulina prior to the death of Celestina.

The phrase to become effective upon the death of the DONOR admits of no other interpretation but that
Celestina intended to transfer the ownership of the properties to Ursulina on her death, not during her

More importantly, the provision in the deed stating that if the donee should die before the donor, the
donation shall be deemed rescinded and of no further force and effect shows that the donation is a
postmortem disposition.

As stated in a long line of cases, one of the decisive characteristics of a donation mortis causa is that the
transfer should be considered void if the donor should survive the donee.

More. The deed contains an attestation clause expressly confirming the donation as mortis causa:

SIGNED by the above-named donor, Celestina Ganuelas, at the foot of this deed of donation mortis
causa, consisting of two (2) pages and on the left margin of each and every page thereof in the joint
presence of all of us who at her request and in her presence and that of each other have in like manner
subscribed our names as witnesses.

To classify the donation as inter vivos simply because it is founded on considerations of love and affection
is erroneous. That the donation was prompted by the affection of the donor for the donee and the services
rendered by the latter is of no particular significance in determining whether the deed constitutes a
transfer inter vivos or not, because a legacy may have an identical motivation. In other words, love and
affection may also underline transfers mortis causa.

As noted by the trial court, the attesting witnesses failed to acknowledge the deed before the notary
public, thus violating Article 806 of the Civil Code which provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of

The trial court did not thus commit any reversible error in declaring the Deed of Donation to be mortis

G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA

FACTS: Carmen Caiza, 94 years of age, was declared incompetent by judgment due to her advanced
age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A.
Evangelista was appointed legal guardian of her person and estate.

Amparo Evangelista commenced a suit to eject the spouses Pedro and Leonora Estrada from the house
and lot at No. 61 Tobias St., Quezon City owned by Caiza. It was alleged in the complaint that out of
kindness, Caiza had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free and that Caiza already had urgent need of the house on
account of her advanced age and failing health, "so funds could be raised to meet her expenses for
support, maintenance and medical treatment.

In their Answer, the defendants declared that in consideration of their faithful service, they had been
considered by Caiza as her own family, and the latter had in fact executed a holographic will on
September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC in Caiza's favor. But on appeal, the RTC reversed its decision.
CA affirmed RTCs judgment. It ruled that while "said will, unless and until it has passed probate by the
proper court, could not be the basis of defendants' claim to the property, . . it is indicative of intent and
desire on the part of Carmen Caiza that defendants are to remain and are to continue in their occupancy
and possession, so much so that Caiza's supervening incompetency can not be said to have vested in
her guardian the right or authority to drive the defendants out." Hence, this petition.

ISSUE: Whether or not the unprobated holographic will of Caiza vests right in favor of Spouses Estrada.


The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they
remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from
evicting them therefrom, since their ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked;
and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law
being quite explicit: "No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court" (ART. 838, CC).

An owner's intention to confer title in the future to persons possessing property by his tolerance, is not
inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient.
And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of the physical infirmities afflicting her, arising
from her extreme age.

Cua v Vargas
GR No. 156536 October 31, 2006

Facts: A parcel of residential land with an area of 99 square meters located in San Juan, Virac,
Catanduanes was left behind by the late Paulina Vargas. A notarized Extra Judicial Settlement Among
Heirs was executed by and among her 9 heirs, partitioning and adjudicating unto themselves the lot in
question, each one of them getting a share of 11 square meters. However, ponly Ester, Visitacion, Juan,
Zenaida and Rosario signed the document. After some time, an Extra Judicial Settlement Among Heirs
with Sale was again executed by and among the same heirs over the same property and also with the
same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the document and
their respective shares totaling 55 square meters were sold to Joseph Cua, petitioner herein. Both subject
documents were piblished in the Catanduanes Tribune.
According to Gloria Vargas, one of respondents herein, she was unaware of the execution of the 2
documents. After knowing of the sale, Gloria the tried to redeem the property from by sending a letter to
inform petitioner that she intends to exercise her right of legal redemption of the 5 shares sold as a well
as other shares which he may have acquired. When the offer to redeem was refused Gloria Vargas filed a
case for annulment of Extra Judicial Settlement and Legal Redemption of the lot with the MTC of Virac,
Catanduanes against petitioner.
Gloria and other respondents claimed that as co-owners of the property, they may be subrogated to the
rights of the purchaser by reimbursing him the price of the sale. They likewise alleged that the 30-day
period following a written notice by the vendors to their co-owners for them to exercise the right of
redemption of the property had not yet set in as no written notice was sent to them. In effect, they claimed
that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale
were null and void and had no legal and binding effect on them.
The MTC upheld the sale to petitioner because the transaction purportedly occurred after the partition of
the property among the co-owner heirs and so the other heirs could validly dispose of their respective
shares. On appeal, the RTC affirmed the judgment. The matter was thereafter raised to the Ca which held
that, pursuant to Section 1, Rule 74 of the Rules of Court, the extrajudicial settlement made by the other
co-heirs is not binding upon respondents considering the latter never participated in it nor did they ever
signify their consent to the same.

Issue: Whether or not respondents may redeem the property.

Held: Yes. Under Article 1088 of the NCC, should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one month from the time
they were notified in writing of the sale by the vendor.
It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in
writing by the vendor of the actual sale. Written notice is indispensable and mandatory,actual knowledge
of the sale acquired in some other manner by the redemptioner notwithstanding. It cannot be counted
from the time advance notice is given of an impending or contemplated sale.
Though the Code does not prescribe any particular form of written notice nor any distinctive method for
written notification of redemption, the method of notification remains exclusive, there being no alternative
provided by law.
Section 1 of Rule 74 states that persons who do not participate or had no notice of an extrajudicial
settlement will not be bound thereby. It contemplates a notice that has been sent out or issued before any
deed of settlement and/or partition is agreed upon, and not after such an agreement has already been
executed as what happened in the instant case with the publication of the first deed of extrajudicial
settlement among heirs.
The publication of the settlement does not constitute constructive notice to the heirs who had no
knowledge or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and was never intended to deprive
heirs of their lawful participation in the decedent's estate. In this connection, the records of the present
case confirm that respondents never signed either of the settlement documents, having discovered their
existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial
settlements do not bind respondents, and the partition made without their knowledge and consent is
invalid insofar as they are concerned.
Considering, therefore, that respondents' co-heirs failed to comply with this requirement, there is no legal
impediment to allowing respondents to redeem the shares sold to petitioner given the former's obvious
willingness and capacity to do so.

G.R. No. 175720 September 11, 2007


Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe
Nuevo, Makati City, and covered by TCT No. 144865. In Oct, 27, 1983, Juanito executed a Huling Habilin
at Testamento giving petitioner Cresenciana, his live-in partner, apartments D and E, and his children
Benjamin Rodriguez (the deceased husband of respondent Evangeline), apartment A, respondent
Buenaventura, apartment B, and respondent Belen, apartment C.
However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor of
petitioner TCT No. 144865 was cancelled and a new TCT No. 150431 was issued in the name of the
Petitioner filed on September 20, 2001 a complaint for unlawful detainer against the respondents, alleging
that she is the lawful and registered owner of the property; and that in 1984, she allowed respondents
Evangeline, Buenaventura and Belen, out of kindness and tolerance, to personally occupy units A, B and
D, respectively. However, without her knowledge and consent, respondents separately leased the units to
Montano Magpantay, Mel Navarro and Socorro Escota, who despite repeated demands, failed and
refused to vacate the premises and to pay the rentals thereof. In their Answer, respondents claimed
ownership over the subject property by succession. They alleged that while petitioner is not the lawful
owner of the propeties because the 1984 Deed of Absolute Sale was simulated and void. A Civil Case
was pending before the RTC of Makati City which they filed to assail the validity of the said sale,
respondents maintain that petitioner exerted undue influence over their father, who at that time was
seriously ill, to agree to the sale of the property for only P20,000.00 after knowing that only two
apartments were given to her in the Huling Habilin at Testamento. Further, she had no cause of action
against them for being a party to the August 23, 1990 Partition Agreement wherein they recognized each
other as co-owners and partitioned the property in accordance with the provision of the last will and
MTC: dismissed the complaint and rendered a judgment in favor of the respondents and held that the
deed of sale was simulated otherwise petitioner would not have entered into the Partition Agreement,
which legally conferred upon each heir exclusive ownership over their respective shares
RTC: reversed the decision of the MTC. It held that petitioners certificate of title is a conclusive evidence
of ownership of the land described therein; and that unless and until said title has been annulled by a
court of competent jurisdiction, such title is existing and valid. The present action, which involves only the
issue of physical or material possession, is not the proper action to challenge it. Further, the MTC erred
when it relied heavily on the Huling Habilin at Testamento, which was not probated hence has no effect
and no right can be claimed therein. The Partition Agreement which was allegedly entered into pursuant
to the Huling Habilin at Testamento should not also be considered.

CA: reinstated the decision of the MTC. It held that the MTC correctly received evidence on ownership
since the question of possession could not be resolved without deciding the issue of ownership. Further,
the Huling Habilin at Testamento transmitted ownership of the specific apartments not only to the
respondents but also to the petitioner.The motion for reconsideration was denied hence, the petition for

ISSUE: WON Court of Appeals erred in ruling that the Huling Habilin at Testamento transmitted ownership
of the specific apartments disregarding the fact that the same is not probated yet and that the testator
changed or revoked his will by selling the property to petitioner prior to his death.

HELD: YES. The lower courts considered the following documentary evidence in arriving at their
respective decisions, albeit the RTC decision contradicts that of the MTC and Court of Appeals: 1) Huling
Habilin at Testamento executed by Juanito Rodriguez on October 27, 1983; 2) Deed of Sale of the
property executed by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No. 150431 in the
name of the petitioner; and 4) the August 23, 1990 Partition Agreement executed by both the respondents
and the petitioner.
Based on the foregoing documentary evidence, we find that there is preponderance of evidence in favor
of the petitioners claim. Respondents failed to prove their right of possession, as the Huling Habilin at
Testamento and the Partition Agreement have no legal effect since the will has not been probated. Before
any will can have force or validity it must be probated. This cannot be dispensed with and is a
matter of public policy. Article 838 of the Civil Code mandates that no will shall pass either real or
personal property unless it is proved and allowed in accordance with the Rules of Court. As the
will was not probated, the Partition Agreement which was executed pursuant thereto cannot be given
effect. Thus, the fact that petitioner was a party to the partition agreement becomes immaterial in the
determination of the issue of possession.
Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez
remained the owner thereof since ownership would only pass to his heirs at the time of his death. Thus,
as owner of the property, he had the absolute right to dispose of it during his lifetime. Now, whether or not
the disposition was valid is an issue that can be resolved only in the Civil Case instituted by the
respondents for that purpose.