G.R. No.

L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of
Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First
Instance of Davao, Branch VI; AVELINA B. ANTONIO and
DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
wife had perfected before her death, that their conjugal
properties would be partitioned in the manner indicated in
her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended
that the affidavit and "conformation" of Felix Balanay, Sr. were
void. The lower court in its order of June 18, 1973 "denied"
the opposition and reset for hearing the probate of the will. It
gave effect to the affidavit and conformity of Felix Balanay, Sr.
In an order dated August 28, 1973 it appointed its branch
clerk of court as special administrator of the decedent's
estate.

Mrs. Antonio moved for the reconsideration of the lower

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the
Court of First Instance of Davao dated February 28, 1974,
declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on
February 12, 1973 in Davao City at the age of sixty-seven. She
was survived by her husband, Felix Balanay, Sr., and by their
six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B.
Lanaban and Emilia B. Pabaonon.
court's order of June 18, 1973 on the grounds (a) that the
testatrix illegally claimed that she was the owner of the
southern half of the conjugal lots and (b) that she could not
partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion. The lower
court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David
O. Montaa, Sr., claiming to be the lawyer of petitioner Felix
Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of court to
withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate
proceeding." In that motion Montaa claimed to be the
lawyer not only of the petitioner but also of Felix Balanay, Sr.,
Beatriz B. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated
February 27, 1973 for the probate of his mother's notarial will
dated September 5, 1970 which is written in English. In that
will Leodegaria Julian declared (a) that she was the owner of
the "southern half of nine conjugal lots (par. II); (b) that she
was the absolute owner of two parcels of land which she
inherited from her father (par. III), and (c) that it was her
desire that her properties should not be divided among her
heirs during her husband's lifetime and that their legitimes
should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her
husband's death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she
described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all
owned by her. She disposed of in the will her husband's one
half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate
of the will on the grounds of lack of testamentary capacity,
undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached
thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to the probate of the will
and affirmed that he was interested in its probate. On the
same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of
Hereditary Rights" wherein he manifested that out of respect
for his wife's will he "waived and renounced' his hereditary
rights in her estate in favor of their six children. In that same
instrument he confirmed the agreement, which he and his
Montaa in his motion assailed the provision of the will which
partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate
of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to
creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B.
Guyo, in their comments dated October 15, 1973 manifested
their conformity with the motion for the issuance of a notice
to creditors. They prayed that the will be declared void for
being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa,
assumed that the issuance of a notice to creditors was in
order since the parties had agreed on that point. It adopted
the view of Attys. Montaa and Guyo that the will was void.
So, in its order of February 28, 1974 it dismissed the petition
for the probate, converted the testate proceeding into an
intestate proceeding, ordered the issuance of a notice to
creditors and set the intestate proceeding for hearing on April
1 and 2, 1974. The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and published on May 2,
9 and 16 in the Davao Star in spite of petitioner's motion of
April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas,
in a verified motion dated April 15, 1974, asked for the
reconsideration of the lower court's order of February 28,
1974 on the ground that Atty. Montaa had no authority to
withdraw the petition for the allowance of the will. Attached
to the motion was a copy of a letter dated March 27, 1974
addressed to Atty. Montaa and signed by Felix Balanay, Jr.,
Beatriz V. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon, wherein they terminated Montaa's services and
informed him that his withdrawal of the petition for the
probate of the will was without their consent and was
contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion
for reconsideration. The lower court denied the motion in its
order of June 29, 1974. It clarified that it declared the will
void on the basis of its own independent assessment of its
provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing
upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the
petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal
validity had been established. 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 vs.
Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang
vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369;
Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA
693).1wph1.t and 752 of the Civil Code. A portion of the estate should be
But the probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in converting the
testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it
gave effect to the surviving husband's conformity to the will
and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the
first invalid disposition had not been made" (Art. 792, Civil
Code). "Where some of the provisions of a will are valid and
others invalid, the valid parts will be upheld if they can be
separated from the invalid without defeating the intention of
the testator or interfering with the general testamentary
scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern
half of the conjugal lands is contrary to law because, although
she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs.
Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix
should not be divided among her heirs during her husband's
lifetime but should be kept intact and that the legitimes
should be paid in cash is contrary to article 1080 of the Civil
Code which reads:
ART. 1080. Should a person make a partition
of his estate by an act inter vivos, or by will,
such partition shall be respected, insofar as
it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her
family, to keep any agricultural, industrial,
or manufacturing enterprise intact, may
avail himself of the right granted him in this
article, by ordering that the legitime of the
other children to whom the property is not
assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal
estate among her six children (her husband had renounced
his hereditary rights and his one-half conjugal share). She did
not assign the whole estate to one or more children as
envisaged in article 1080. Hence, she had no right to require
that the legitimes be paid in cash. On the other hand, her
estate may remain undivided only for a period of twenty
years. So, the provision that the estate should not be divided
during her husband's lifetime would at most be effective only
for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership (Art.
1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights
and his one-half share of the conjugal partnership (Arts.
179[1] and 1041, Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights and his one-
half share in the conjugal estate (Art. 1060[1] Civil Code), it
should be subject to the limitations prescribed in articles 750
adjudicated to the widower for his support and maintenance.
Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on
collation, the will is intrinsically valid and the partition therein
may be given effect if it does not prejudice the creditors and
impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided
among the children and the surviving spouse.
It should be stressed that by reason of the surviving
husband's conformity to his wife's will and his renunciation of
his hereditary rights, his one-half conjugal share became a
part of his deceased wife's estate. His conformity had the
effect of validating the partition made in paragraph V of the
will without prejudice, of course, to the rights of the creditors
and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired
after the making of a will shall only pass thereby, as if the
testator had it at the time of making the will, should it
expressly appear by the will that such was his intention".
Under article 930 of the Civil Code "the legacy or devise of a
thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if
the thing bequeathed, though not belonging to the testator
when he made the will, afterwards becomes his, by whatever
title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the
manner set forth in paragraph V of her will. It is true that she
could dispose of by will only her half of the conjugal estate
(Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition
has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra,
where the testatrix instituted as heir her sister and preterited
her parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line. Article 854
of the Civil Code provides that "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 devises and legacies, shall be valid insofar as
they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there
were no legacies and devises, total intestacy resulted (.Art.
960[2], Civil Code).1wph1.t of Court).
in order if only a special administrator has been appointed.
Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of
administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file
them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular
administrator and not that of a special administrator.
It is the executor or regular administrator who is supposed to
oppose the claims against the estate and to pay such claims
when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules

In the instant case, the preterited heir was the surviving
spouse. His preterition did not produce intestacy. Moreover,
he signified his conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not proceeding with
the probate of the will as contemplated in its uncancelled
order of June 18, 1973. Save in an extreme case where the
will on its face is intrinsically void, it is the probate court's
duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil
Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA
428).
As aptly stated by Mr. Justice Barredo, "the very existence of a
purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire
be given effect independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-
27200, August 18, 1972, 46 SCRA 538, 565).
We also take this occasion to point out that the probate
court's appointment of its branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary practice because
it might engender the suspicion that the probate Judge and
his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate
Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official
time to his official duties and should not have as a sideline the
administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and
June 29, 1974 are set aside and its order of June 18, 1973,
setting for hearing the petition for probate, is affirmed. The
lower court is directed to conduct further proceedings in
Special Case No. 1808 in consonance with this opinion. Costs,
against the private respondents.
SO ORDERED.

To give effect to the intention and wishes of the testatrix is

the first and principal law in the matter of testaments (Dizon-
Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will
render a testamentary disposition operative takes precedence
over a construction that will nullify a provision of the will
(Arts. 788 and 791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy

especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided
and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the
purpose of giving it effect (Austria vs. Reyes, L-23079,
February 27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the

testator must be followed and the dispositions of the
properties in his will should be upheld (Estorque vs. Estorque,
L-19573, June 30, 1970, 33 SCRA 540, 546).

The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better
than that which the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred

in issuing a notice to creditors although no executor or regular
administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not

G.R. No. L-47305 July 31, 1942
In the matter of the estate of Rufina Arevalo. ARISTON
BUSTAMANTE, administrator-appellant,
vs.
PETRONA AREVALO, ET AL., oppositors-appellees.
Nicasio Yatco for appellant.
Ventura and Belmonte for appellees.
BOCOBO, J.:
The main issue in this case is whether or not Exhibit C,
presented by appellant for allowance as the last will and
testament of the deceased Rufina Arevalo, is a forgery. The
Court of First Instance of Manila held that it was a forged
document, and allowed an earlier will, Exhibit 6, whose
authenticity was unquestioned. The value of the estate is over
P50,000.
The questioned document was prepared and signed in
duplicate. It consists of two pages and is dated October 2,
1937. It appears to be signed by Rufina Arevalo and by three
witnesses, Manuel M. Cruz, Remigo Colina and Angel
Sanchez. The formal requisites of a will have been complied
with.
An initial fact that arrests the attention is the formulation by
the appellees of the allegation of forgery even before seeing
the questioned document. Said charge of forgery was signed
on April 22, 1938, although Exhibit C, which had been in a
sealed envelop, was not opened by order of the court till the
next day, April 23, 1938. It is true that the opposition by the
appellees was not actually filed in court till April 23, but it was
signed by appellees' attorneys on April 22, was subscribed
and sworn to by Amando Clemente on April 22, and a copy
thereof was sent by registered mail to Attorney Nicasio Yatco
on April 22. Moreover, in the morning of April 23, appellees
attorneys Messrs. Jose Belmonte and Vicente Delgado,
announced their opposition to the will Exhibit C in open
court, before said documents was opened by order of the
court on that day.
One of the principal reasons of the court a quo for believing
Exhibit C to be a forgery is that in the genuine signatures the
terminal stroke of the capital "R" in "Rufina" is not joined with
the letter "u," while in Exhibit C such ending is united with the
letter "u" in the two marginal signatures, although in the
central signature appearing on page 2, the two letters are
separated. The probate court believes that this difference
between the marginal and the central signatures is due to the
fact that the forger first used the check of "La Previsora"
(Exhibit I) as the model in falsifying the marginal signatures,
but having been shown another signature with the
characteristic already mentioned separation of the two
letters he tried to imitate said peculiarity in making central
signature.
We believe the probate court over looked the well-
established principle that in passing upon questioned
documents, the test is the general character of the writing
rather than any minute and precise comparison of individual
letters or lines. In People vs. Bustos (45 Phil., 30) , this Court
held:
It is a first principle in writing that exact coincidence
between two signatures is absolute proof that one or
the other is a forgery. There must be some different
before authenticity reposes upon a general
characteristics resemblance, coupled with specific
differences, such as naturally result from the infinite
variety of conditions controlling the muscles of the
writer at each separate effort in forming his
signature.
(Emphasis supplied.)
In the present case, a careful scrutiny of all the questioned
and the standard signatures has convinced us that they have
been written by the same person because they show the
same general type, quality and characteristics, with natural
variations. We are, therefore, inclined to give credence to the
expert testimony to that effect presented by the appellant.
Moreover, a forger who has to make two or more signatures
usually sees to it that all the signatures are uniform for fear
that any difference might arouse suspicion. In this case,
however, in some questioned signatures the letters "R" and
"u" are separated, but in others, they are united. Osborne in
"Questioned Documents" (pp. 368, 369) says:
Another indication of genuineness in a holographic
document or a considerable amount of writing, or in
two or more disputed signatures, are certain natural
variations in the details of the writing. It is difficult
for the inexperienced or unthinking examiner to
understand that a certain extent of variation in a
group of several signatures and variation in repeated
words and letters in a continuous holographic
document can be evidence of genuineness. The
forger does not understand this necessity for natural
variation and, as nearly as he can, makes words and
letters just alike.
xxx xxx xxx
It necessarily follows, therefore, that if the several
lines of a disputed document, or several signatures
under investigation, show these natural variations of
writing of the same word or letter, all of course
within the scope of variation of the genuine writing,
this variation itself, surprising and paradoxical as it
may appear, is as strong evidence of genuineness as
the opposite condition is evidence of forgery.
(Emphasis supplied.)
Furthermore, it is to be noted that the document in question
was prepared and signed in duplicate, so that there are six
signatures of Rufina Arevalo, instead of only three. It is
reasonable to believe that a forger would reduce the number
of signatures to be forged so as to lessen the danger of
detection. In this case, Attorney Nicasio Yatco, who supervised
the execution of Exhibit C, must have known that it was not
necessary to make a signed duplicate of the will.
As for the probate court's opinion that the forger must have
used Exhibit I (a check issued by "La Previsora" to Rufina
Arevalo) as a model in falsifying the marginal signatures, it is
highly improbable that said check was in the hands of Rufina
Arevalo or of her attorney, Nicasio Yatco, on or about October
2, 1937, when the document in question was signed. The
check had been issued on June 30, 1936, or over a year
before, and it must have been returned by the bank
concerned to "La Previsora" in the ordinary course of
business, because it was produced by the Manager of "La
Previsora." It should likewise be observed that the signature
on the first page of the duplicate will (Exhibit C-3) does not
have the supposed peculiarity of the standard signatures, that
is the separation between "R" and "u." If, as the lower court (b) Original Certificate of Title of Manila No. 4681
states, the forger upon being shown a model other than
Exhibit I, imitated said characteristic separation in making the (c) Transfer Certificate of Title of Manila No. 19961
central or body signature on the original will Exhibit C, it is
indeed strange that he should not do the same immediately (d) Original Certificate of Title of Manila No. 5066
thereafter on the first page of the duplicate will but that he
should, instead, repeat the mistake he had made on the
(e) Original Certificate of Title of Manila No. 4682.
marginal signatures on the original will.
Her undivided interest in the two pieces of land of the
Finally, to conclude that a forgery has been committed, the
conjugal partnership, with Torrens titles No. 4887 and No.
evidence should be forcefully persuasive. Before we are
15628, devised to Amando Clemente in the earlier will, is not
disposed to find that an attorney-at-law has so debased
specifically mentioned in the later will, Exhibit C. Moreover,
himself as to aid and abet the forgery of a will, which would
the second will has no revocation clause.
not only send him to jail for many years but would ruin his
future, we must require proof sufficiently strong to prevail
At first sight, it would seem that the earlier will can stand with
against every fair and thoughtful hesitancy and doubt. And
respect to Rufina Arevalo's share in said two parcels of land
the instrumental witnesses have testified that Rufina Arevalo
belonging to the conjugal partnership. But a closer
signed the will in their presence. It is hard to believe they
examination of the later will counter-acts such initial reaction.
would commit perjury as it has not been shown they had any
interest in this case.
In the first place, the testatrix in the second will names
Ariston Bustamante her only heir to all her property, both
Therefore, we find that the will of Rufina Arevalo, dated
personal and real, her words in Spanish being: "Nombro como
October 2, 1937 and marked Exhibit C, is genuine and should
mi unico heredero, Ariston Bustamante, de todas mis
be allowed.
propiedades dejadas ya mueble o inmueble." (Italics
supplied.) It is true that in enumerating her parcels of land,
It is unnecessary to discuss the incidental issues of fact so ably
she did not specify her interest in the two lots of the conjugal
presented by counsel and examined in detail by the probate
partnership. But this omission must have been due either to
court, inasmuch as the foregoing disposes of the basic
an oversight or to the belief that it was premature to name
question raised. The relative position of the contending
said two parcels as the conjugal partnership was still being
devisees in the affection of the deceased; whether Rufina
liquidated. In either case, the testatrix must have thought that
Arevalo could go alone to the law office of Attorney Yatco on
her comprehensive words "mi unico heredero de todas mis
October 2, 1937 to sign the will Exhibit C; the alleged
propiedades dejadas ya mueble o inmueble" would be
resentment of the testatrix toward Amando Clemente when
sufficient to cover all her property, whether specially listed or
she signed the second will, and similar questions are not of
not.
sufficient significance to alter the conclusion herein arrived at.
In fact, they merely tend to becloud the main issue.
Secondly, in the opening paragraph of the second will, the
following words appear: "hago constar a todos este
The next question to be inquired into is whether or not the
mi ultimo testamento y voluntad expresado en Castellano
later will (Exhibit C) dated October 2, 1937, whose probate is
lenguaje que conozco y poseo, y queriendo disponer de mis
herein approved, has entirely revoked the earlier will, Exhibit
bienes por virtud de este mi testamento." (Emphasis
6, dated January 9, 1936. Though both partes admit that the
supplied.) Though she knew that she had made a first will, she
first will has been revoked by the second, yet we deem it
nevertheless said that the second will was her last one. This
necessary to discuss the question because a member of this
would seem to signify that her last will, cancelling her
Court thinks the earlier will can stand in part. It appears that
previously expressed wish, was to make Ariston Bustamante
the undivided interest of Rufina Arevalo in two parcels of land
her only heir. Furthermore, when she said she wanted to
and the improvements thereon which belonged to the
dispose of her property by means of the second will
conjugal partnership between Bernabe Bustamante, who had
("queriendo disponer de mis bienes por virtud de este mi
died before the making of the two wills, and Rufina Arevalo,
testamento"), it would appear to be her intention that no
was expressly devised to Amando Clemente in the earlier will
property of hers should be left undisposed of in the second
but was not specifically mentioned in the later will. In the first
will. This fact is corroborated in the second clause wherein
will, Exhibit 6, Rufina Arevalo, who had no forcible heirs, gave
she names Ariston Bustamante as her only heir to all her
to Ariston Bustamante, her nephew, three lots and the
property whether personal or real.
buildings thereon; devised a parcel of land and the houses
standing thereon to her cousin, Petrona Arevalo Viuda de
We believe, therefore, that the first will has been entirely
Zacarias, and to her niece, Carmen Papa de Delgado; and
revoked. Though it might appear right that Amando Clemente
finally disposed, in favor of Amando Clemente, another
should receive something from the estate because he,
cousin, of a piece of land and the houses thereon, and of her
together with Ariston Bustamante, has been raised by the
undivided interest in the two parcels of land and the
testatrix, and both are her relatives, nevertheless it would be
improvements thereon, which belonged to the conjugal
venturesome for us to advance our own idea of a just
partnership, also making said Amando Clemente the
distribution of the property in the face of a different mode of
residuary legatee. But in the second will, Exhibit C, she
disposition so clearly expressed by the testatrix in the later
designates Ariston Bustamante her only heir in these terms:
will. As she had no forcible heirs, she was absolutely free to
give her estate to whomsoever she choose, subject of course
Segundo Nombro como mi unico heredero,
to the payment of her debts. It would be a dangerous
Ariston Bustamante, de todas mis propiedades
precedent to strain the interpretation of a will in order to
dejadas ya mueble o inmueble que se describen mas
effect what the court believes to be an equitable division of
abajo:
the estate of a deceased person. The only function of the
courts in these cases is to carry out the intention of the
(a) Original Certificate of Title of Manila No. 5059 deceased as manifested in the will. Once that intention has
been determined through a careful reading of the will or wills,
and provided the law on legitimes has not been violated, it is
beyond the pale of judicial cognizance to inquire into the
fairness or unfairness of any devise or bequest. It might be
said that it is hard to understand how, in a temporary anger at
Amando Clemente, the testatrix would entirely cut him off
from the inheritance. We should not, however, sit in
judgment upon her motives and sentiments, first because, as
already stated, nothing in the law restrained her from
disposing of her property in any manner she desired, and
secondly, because there are no adequate means of
ascertaining the inward processes of her conscience. She was
the sole judge of her own attitude toward those who
expected her bounty.

In view of the foregoing, the decision appealed from,

declaring the second will Exhibit C a forgery and allowing the
first will Exhibit 6, should be and is hereby reversed, and
another judgment shall be entered allowing the later will
Exhibit C, which has entirely revoked the earlier will Exhibit 6.
No special pronouncement on costs is made. Let the record of
this case be returned to the court of origin for further
proceedings. So ordered.

G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors
appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A.
Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law,
from an order of the Court of First Instance of Manila dated
April 30, 1964, approving the project of partition filed by the
executor in Civil Case No. 37089 therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two
items have been satisfied, the remainder shall go to his seven
surviving children by his first and second wives, namely:
Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a
resident of San Antonio, Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of Manila on September
15, 1958.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis, various amounts
totalling P40,000.00 each in satisfaction of their respective
legacies, or a total of P120,000.00, which it released from
time to time according as the lower court approved and
allowed the various motions or petitions filed by the latter
three requesting partial advances on account of their
respective legacies.
On January 8, 1964, preparatory to closing its administration,
the executor submitted and filed its "Executor's Final Account,
Report of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis in the amount of
P40,000.00 each or a total of P120,000.00. In the project of
partition, the executor pursuant to the "Twelfth" clause of
the testator's Last Will and Testament divided the residuary
estate into seven equal portions for the benefit of the
testator's seven legitimate children by his first and second
marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to
him, proof of service of which is evidenced by the registry
receipt submitted on April 27, 1964 by the executor. 1
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued
an order overruling the oppositions and approving the
executor's final account, report and administration and
project of partition. Relying upon Art. 16 of the Civil Code, it
applied the national law of the decedent, which in this case is
Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been
denied by the lower court on June 11, 1964, oppositors-
appellants appealed to this Court to raise the issue of which
law must apply Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar
v. Christensen Garcia, L-16749, January 31, 1963. Said
doctrine is usually pertinent where the decedent is a national
of one country, and a domicile of another. In the present case,
it is not disputed that the decedent was both a national of
Texas and a domicile thereof at the time of his death.2 So that
even assuming Texas has a conflict of law rule providing that
the domiciliary system (law of the domicile) should govern,
the same would not result in a reference back (renvoi) to
Philippine law, but would still refer to Texas law. Nonetheless,
if Texas has a conflicts rule adopting the situs theory (lex rei
sitae) calling for the application of the law of the place where
the properties are situated, renvoi would arise, since the
properties here involved are found in the Philippines. In the
absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from
ours.3 Appellants' position is therefore not rested on the
doctrine of renvoi. As stated, they never invoked nor even
mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the Civil
Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights; (e)
the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject Wherefore, the order of the probate court is hereby
to the law of the country where it is situated. affirmed in toto, with costs against appellants. So ordered.

However, intestate and testamentary successions, both with

respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may he the nature of the property and regardless of
the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the

nation of the decedent.

Appellants would however counter that Art. 17, paragraph

three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or property,

and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code

afore-quoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the provisions
of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the
new Civil Code, while reproducing without substantial change
the second paragraph of Art. 10 of the old Civil Code as Art.
16 in the new. It must have been their purpose to make the
second paragraph of Art. 16 a specific provision in itself which
must be applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the
decedent.

It is therefore evident that whatever public policy or good

customs may be involved in our System of legitimes, Congress
has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter
alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general
ones.

Appellants would also point out that the decedent executed

two wills one to govern his Texas estate and the other his
Philippine estate arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate
Philippine will, it would not alter the law, for as this Court
ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10 now
Article 16 of the Civil Code states said national law should
govern.

The parties admit that the decedent, Amos G. Bellis, was a

citizen of the State of Texas, U.S.A., and that under the laws of
Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied
to the testacy of Amos G. Bellis.

G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.
CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of
the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance
of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated September 14, 1949,
approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy Christensen entitled
to the residue of the property to be enjoyed during her
lifetime, and in case of death without issue, one-half of said
residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator
Edward E. Christensen. The will was executed in Manila on
March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA
LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born
in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no living
ascendants, and no descendants except my above
named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN
CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that
she was baptized Christensen, is not in any way related to me,
nor has she been at any time adopted by me, and who, from
all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with
the Davao Branch of the Philippine National Bank, and paid to
her at the rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof as well as any
interest which may have accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved
daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as aforesaid at No. 665 Rodger
Young Village, Los Angeles, California, U.S.A., all the income
from the rest, remainder, and residue of my property and
estate, real, personal and/or mixed, of whatsoever kind or
character, and wheresoever situated, of which I may be
possessed at my death and which may have come to me from
any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the
executor in his final account and project of partition ratified
the payment of only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was
filed by Helen Christensen Garcia, insofar as it deprives her
(Helen) of her legitime as an acknowledged natural child, she
having been declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the
Philippines, and (b) that said order of distribution is contrary
thereto insofar as it denies to Helen Christensen, one of two
acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was
alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of
California alone, but the entire law thereof because several
foreign elements are involved, that the forum is the
Philippines and even if the case were decided in California,
Section 946 of the California Civil Code, which requires that
the domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen Christensen
having been declared an acknowledged natural child of the
decedent, she is deemed for all purposes legitimate from the
time of her birth.
The court below ruled that as Edward E. Christensen was a
citizen of the United States and of the State of California at
the time of his death, the successional rights and intrinsic
validity of the provisions in his will are to be governed by the
law of California, in accordance with which a testator has the
right to dispose of his property in the way he desires, because
the right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P.
2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in
page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for
reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I THE LOWER COURT ERRED IN IGNORING THE DECISION OF
THE HONORABLE SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF
HER JUST SHARE IN THE INHERITANCE.
II THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR
FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT
UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE
RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE
ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD
BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV THE LOWER COURT ERRED IN NOT DECLARING THAT THE
SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR
IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER
THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.
There is no question that Edward E. Christensen was a citizen
of the United States and of the State of California at the time
of his death. But there is also no question that at the time of
his death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will to
probate, the facts of record show that the deceased
Edward E. Christensen was born on November 29,
1875 in New York City, N.Y., U.S.A.; his first arrival in
the Philippines, as an appointed school teacher, was
on July 1, 1901, on board the U.S. Army Transport
"Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He
stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United
States and stayed there for the following nine years until
1913, during which time he resided in, and was teaching
school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of
the year 1913. However, in 1928, he again departed the
Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again
returned to his own country, and came back to the Philippines
the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing
other evidence to prove their case not covered by this
stipulation of facts. 1wph1.t
Being an American citizen, Mr. Christensen was interned by
the Japanese Military Forces in the Philippines during World
War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945.
Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as
Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to
California shortly after the making of his last will and
testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St.
Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-
3)
In arriving at the conclusion that the domicile of the deceased
is the Philippines, we are persuaded by the fact that he was
born in New York, migrated to California and resided there for
nine years, and since he came to the Philippines in 1913 he
returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never
to have owned or acquired a home or properties in that state,
which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of
meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship
that he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that
when he executed his will in 1951 he declared that he was a
citizen of that State; so that he appears never to have
intended to abandon his California citizenship by acquiring
another. This conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to
mean the same thing, a place of permanent abode. But
domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has
never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he
divides his time, certainly resides in each one, while living in
it. But if he went on business which would require his
presence for several weeks or months, he might properly be
said to have sufficient connection with the place to be called a
resident. It is clear, however, that, if he treated his settlement
as continuing only for the particular business in hand, not
giving up his former "home," he could not be a domiciled
New Yorker. Acquisition of a domicile of choice requires the
exercise of intention as well as physical presence. "Residence
simply requires bodily presence of an inhabitant in a given
place, while domicile requires bodily presence in that place
and also an intention to make it one's domicile." Residence,
however, is a term used with many shades of meaning, from
the merest temporary presence to the most permanent
abode, and it is not safe to insist that any one use et the only
proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject
to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of
the country where said property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law"is
used therein.
There is no single American law governing the validity of
testamentary provisions in the United States, each state of
the Union having its own private law applicable to its citizens
only and in force only within the state. The "national law"
indicated in Article 16 of the Civil Code above quoted can not,
therefore, possibly mean or apply to any general American
law. So it can refer to no other than the private law of the
State of California.
The next question is: What is the law in California governing
the disposition of personal property? The decision of the
court below, sustains the contention of the executor-appellee
that under the California Probate Code, a testator may
dispose of his property by will in the form and manner he
desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d
877, 176 P. 2d 952. But appellant invokes the provisions of
Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's
opposition and is not denied. We have checked it in the
California Civil Code and it is there. Appellee, on the other
hand, relies on the case cited in the decision and testified to
by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen
was a citizen of the State of California, the internal law
thereof, which is that given in the abovecited case, should
govern the determination of the validity of the testamentary
provisions of Christensen's will, such law being in force in the
State of California of which Christensen was a citizen.
Appellant, on the other hand, insists that Article 946 should
be applicable, and in accordance therewith and following the
doctrine of the renvoi, the question of the validity of the
testamentary provision in question should be referred back to
the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various
authors, thus:
The problem has been stated in this way: "When the Conflict
of Laws rule of the forum refers a jural matter to a foreign law
for decision, is the reference to the purely internal rules of
law of the foreign system; i.e., to the totality of the foreign
law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court
chose to accept the renvoi, that is, applied the Conflict of
Laws rule of Illinois which referred the matter back to
Michigan law. But once having determined the the Conflict of
Laws principle is the rule looked to, it is difficult to see why
the reference back should not have been to Michigan Conflict
of Laws. This would have resulted in the "endless chain of
references" which has so often been criticized be legal
writers. The opponents of the renvoi would have looked
merely to the internal law of Illinois, thus rejecting the renvoi
or the reference back. Yet there seems no compelling logical
reason why the original reference should be the internal law
rather than to the Conflict of Laws rule. It is true that such a
solution avoids going on a merry-go-round, but those who
have accepted the renvoi theory avoid this inextricabilis
circulas by getting off at the second reference and at that
point applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look always to
internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to
the renvoi plead that greater uniformity will result from
adoption of their respective views. And still more strange is
the fact that the only way to achieve uniformity in this choice-
of-law problem is if in the dispute the two states whose laws
form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept
the doctrine, the result of the litigation will vary with the
choice of the forum. In the case stated above, had the
Michigan court rejected the renvoi, judgment would have
been against the woman; if the suit had been brought in the
Illinois courts, and they too rejected the renvoi, judgment
would be for the woman. The same result would happen,
though the courts would switch with respect to which would
hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances:
where the title to land is in question, and where the validity
of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile
of the parties in the divorce case, is applied by the forum, but
any further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be
recognized by every court; and every divorce, valid by the
domicile of the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in
France, leaving movable property in Massachusetts, England,
and France. The question arises as to how this property is to
be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court.
There the rule of the conflict of laws as to intestate succession
to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile
was France, the natural thing for the Massachusetts court to
do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called upon
to determine how this property should be distributed, it
would refer the distribution to the national law of the
deceased, thus applying the Massachusetts statute of
distributions. So on the surface of things the Massachusetts
court has open to it alternative course of action: (a) either to
apply the French law is to intestate succession, or (b) to
resolve itself into a French court and apply the Massachusetts
statute of distributions, on the assumption that this is what a
French court would do. If it accepts the so-
called renvoidoctrine, it will follow the latter course, thus
applying its own law.
This is one type of renvoi. A jural matter is presented which
the conflict-of-laws rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn, refers the matter
back again to the law of the forum. This is renvoi in the
narrower sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-
571.)
After a decision has been arrived at that a foreign law is to be
resorted to as governing a particular case, the further
question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a
question which, while it has been considered by the courts in
but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine
involved has been descriptively designated by them as the
"Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of the
foreign law in toto would in many cases result in returning the
main controversy to be decided according to the law of the
forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoi is that the
court of the forum, in determining the question before it,
must take into account the whole law of the other
jurisdiction, but also its rules as to conflict of laws, and then
apply the law to the actual question which the rules of the
other jurisdiction prescribe. This may be the law of the forum.
The doctrine of the renvoi has generally been repudiated by
the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and
the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-
1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According
to this theory 'the law of a country' means the whole of its
law.
xxx xxx xxx
Von Bar presented his views at the meeting of the
Institute of International Law, at Neuchatel, in 1900,
in the form of the following theses:
(1) Every court shall observe the law of its country as
regards the application of foreign laws.
(2) Provided that no express provision to the
contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to
bind its nationals abroad as regards their personal statute,
and desires that said personal statute shall be determined by
the law of the domicile, or even by the law of the place where
the act in question occurred.
(b) The decision of two or more foreign systems of law,
provided it be certain that one of them is necessarily
competent, which agree in attributing the determination of a
question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to distribute
the personal estate of an Englishman who has died domiciled
in Belgium in accordance with the law of his domicile, he
must first inquire whether the law of Belgium would
distribute personal property upon death in accordance with
the law of domicile, and if he finds that the Belgian law would
make the distribution in accordance with the law of
nationality that is the English law he must accept this
reference back to his own law.
We note that Article 946 of the California Civil Code is its
conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on succession and
the conflict of laws rules of California are to be enforced
jointly, each in its own intended and appropriate sphere, the
principle cited In re Kaufman should apply to citizens living in
the State, but Article 946 should apply to such of its citizens
as are not domiciled in California but in other jurisdictions.
The rule laid down of resorting to the law of the domicile in
the determination of matters with foreign element involved is
in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which
follow the person of the owner.
When a man dies leaving personal property in one or more
states, and leaves a will directing the manner of distribution
of the property, the law of the state where he was domiciled
at the time of his death will be looked to in deciding legal
questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is
logical that, since the domiciliary rules control devolution of
the personal estate in case of intestate succession, the same
rules should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is not
that the domiciliary has effect beyond the borders of the
domiciliary state. The rules of the domicile are recognized as
controlling by the Conflict of Laws rules at the situs property,
and the reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The
New York court has said on the point: 'The general principle
that a dispostiton of a personal property, valid at the domicile
of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity which
was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating
property take but little notice of boundary lines, the practical
wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the
Philippines pointed out as the national law is the internal law
of California. But as above explained the laws of California
have prescribed two sets of laws for its citizens, one for
residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the
California internal law prescribed for its citizens residing
therein, and enforce the conflict of laws rules for the citizens
domiciled abroad. If we must enforce the law of California as
in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above
explained, i.e., apply the internal law for residents therein,
and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no
law to the contrary in the place where the property is
situated" in Sec. 946 of the California Civil Code refers to
Article 16 of the Civil Code of the Philippines and that the law
to the contrary in the Philippines is the provision in said
Article 16 that the national law of the deceased should
govern. This contention can not be sustained. As explained in
the various authorities cited above the national law
mentioned in Article 16 of our Civil Code is the law on conflict
of laws in the California Civil Code, i.e., Article 946, which
authorizes the reference or return of the question to the law
of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the
case, when a decedent is not domiciled in California, to the
law of his domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer the case
back to California; such action would leave the issue
incapable of determination because the case will then be like
a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and
the country of his domicile. The Philippine court must apply
its own law as directed in the conflict of laws rule of the state
of the decedent, if the question has to be decided, especially
as the application of the internal law of California provides no
legitime for children while the Philippine law, Arts. 887(4) and
894, Civil Code of the Philippines, makes natural children
legally acknowledged forced heirs of the parent recognizing
them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156;
Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil.
867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and
Gibbs vs. Government, 59 Phil. 293.) cited by appellees to
support the decision can not possibly apply in the case at bar,
for two important reasons, i.e., the subject in each case does
not appear to be a citizen of a state in the United States but
with domicile in the Philippines, and it does not appear in
each case that there exists in the state of which the subject is
a citizen, a law similar to or identical with Art. 946 of the
California Civil Code.

We therefore find that as the domicile of the deceased

Christensen, a citizen of California, is the Philippines, the
validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be
governed by the Philippine Law, the domicile, pursuant to Art.
946 of the Civil Code of California, not by the internal law of
California..

WHEREFORE, the decision appealed from is hereby reversed

and the case returned to the lower court with instructions
that the partition be made as the Philippine law on succession
provides. Judgment reversed, with costs against appellees.

C.A. No. 4 March 21, 1946
In the matter of the testate estate of the late Encarnacion
Neyra. TRINIDAD NEYRA, petitioner-appellee,
vs.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO
VDA. DE BLANCO, oppositors-appellants.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO
VDA. BLANCO, petitioners-appellants,
vs.
TRINIDAD NEYRA and EUSTAQUIO MENDOZA, oppositors-
appellees.
Lucio Javillonar for oppositors and appellants.
Alejandro M. Panis for applicants and appellees.
DE JOYA, J.:
This is an appeal from a decree rendered by the Hon.
Gervasio Diaz, Judge of the Court of First Instance of the City
of Manila, on December 3, 1943, admitting to probate a will
dated November 3, 1942, executed by the deceased
Encarnacion Neyra; at the same time denying the probate of a
previous will dated September 14, 1939, alleged to have been
executed by the said testatrix.
Trinidad Neyra, beneficiary in the will executed on November
3, 1942, filed, on November 10, 1942, a petition in the Court
of First Instance of Manila, for the probate of said will.
On December 19, 1942, Teodora Neyra, Pilar de Guzman, and
Maria Jacobo Vda. de Blanco, who had not been named as
beneficiaries in said will, filed on opposition to the probate of
the said will dated November 3, 1942, alleging (1) that at the
time of the alleged execution of the said will, the testatrix
Encarnacion Neyra no longer possessed testamentary
capacity; (2) that her thumb marks on said instrument had
been procured by means of fraud by petitioner Trinidad
Neyra, and that Encarnacion Neyra never intended to
consider said document as will; (3) that the alleged will, dated
November 3, 1942, had not been executed in the manner and
form prescribed by law; and(4) that Encarnacion Neyra, since
September 14, 1939, had executed a will, naming as
beneficiaries said oppositors and others, and that said will
had never been revoked or amended in any manner
whatsoever.
On December 26, 1942, petitioner Trinidad Neyra filed a reply
denying the allegations in the opposition.
Subsequently, said oppositors filed a counter petition, asking
for the probate of the first will executed by Encarnacion
Neyra, on September 14, 1939, marked as Exhibit 16. On
March 16, 1943, the legatees Trinidad Neyra and Eustaquio
Mendoza filed their opposition to the probate on said will
marked as Exhibit 16, and amended said opposition, on
September 15, 1943, to which Teodora Neyra and the others
filed a reply, on September 20, 1943.
On the dates set for the hearing on the petition filed by
Trinidad Neyra, and the counter petition mentioned above,
said petitioner as well as the oppositors, presented evidence,
testimonial and documentary. The witnesses presented by the
petitioner Trinidad Neyra were Mons. Vicente Fernandez, Rev.
Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad,
Dr. Eladio A. Aldecoa, Atty. Ricardo Sikat, petitioner Trinidad
Neyra herself, and Atty. Alejandro M. Panis, who had acted as
scrivener in the preparation of said will dated November 3,
1942.
Teodora Neyra and the other oppositors also presented
several witnesses, the principal among whom were
Presentacion Blanco, Caferina de la Cruz, Acislo Manuel, Dr.
Dionisio Parulan, an alleged medical expert, and the
oppositors Teodora Neyra and Pilar de Guzman themselves.
After considering the evidence, the lower court rendered a
decree admitting to probate the will dated November 3, 1942;
at the same time denying the probate of the will dated
September 14, 1939.
From said decision Teodora Neyra and the other oppositors
appealed to the Court of Appeals for the City of Manila,
assigning several errors, which may be reduced to the
following, to wit, that the trial court erred (1) in finding that
Encarnacion Neyra wanted to make a new will; (2) in declaring
that there was reconciliation between Encarnacion Neyra and
her sister Trinidad; (3) in accepting as satisfactory the
evidence submitted by the petitioner; (4) in ignoring the
evidence submitted by the oppositors; and (5) in not
admitting to probate the will dated September 14, 1939.
The evidence, testimonial and documentary, adduced during
the trial of the case in the court below, has satisfactorily and
sufficiently established the following facts:
That Severo Neyra died intestate in the City of Manila, on May
6, 1938, leaving certain properties and two children, by his
first marriage, named Encarnacion Neyra and Trinidad Neyra,
and several other relatives; that after the death of Severo
Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra,
had serious quarrels, in connection with the properties left by
their deceased father, and so serious were their dissensions
that, after March 31, 1939, they had two litigations in the
Court of First Instance of Manila, concerning said properties
(Exhibits 8 and 9): In the first case, filed on March 31, 1939,
Trinidad Neyra and others demanded from Encarnacion Neyra
et al. the annulment of the sale of the property located at No.
366 Raon Street, Manila, and it was finally decided in favor of
the defendants in the Court of First Instance and in the Court
of Appeals, on December 21, 1943 (G.R. No. 8162, Exhibit 9).
In the second case, filed on October 25, 1939, Trinidad Neyra
demanded from Encarnacion Neyra, one-half () of the
property described therein, and one-half () of the rents, and
the Court of First Instance decided in favor of the plaintiff, but
at the same time awarded in favor of the defendant P727.77,
under her counterclaim; and Trinidad Neyra again elevated
the case to the Court of Appeals for Manila (G.R. No. 8075)
Exhibit 8, which was decided, pursuant to the document of
compromise marked as Exhibit D; and the petition for
reconsideration filed therein still remains undecided.
That Encarnacion Neyra, who had remained single, and who
had no longer any ascendants, executed a will on September
14, 1939, marked Exhibit 16, disposing of her properties in
favor of the "Congregacion de Religiosas de la Virgen Maria"
and her other relatives named Teodora Neyra, Pilar de
Guzman and Maria Jacobo Vda. de Blanco, making no
provision whatsoever in said will in favor of her only sister
Trinidad Neyra, who had become her bitter enemy; that when
the said will was brought to the attention of the authorities of
said Congregation, after due deliberation and consideration,
said religious organization declined the bounty offered by
Encarnacion Neyra, and said decision of the Congregation was
duly communicated to her; that in order to overcome the
difficulties encountered by said religious organization in not
accepting the generosity of Encarnacion Neyra, the latter
decided to make a new will, and for that purpose, about one
week before her death, sent for one Ricardo Sikat, an attorney
working in the Law Offices of Messrs. Feria and LaO, and gave
him instructions for the preparation of a new will; that
Attorney Sikat, instead of preparing a new will, in accordance
with the express instructions given by Encarnacion Neyra,
merely prepared a draft in the form of a codicil, marked as
Exhibit M, amending said will, dated September 14, 1939,
again naming said religious organization, among others, as
beneficiary, and said draft of a codicil was also forwarded to
the authorities of the said religious organization, for their
consideration and acceptance.
In the meanwhile, Encarnacion Neyra had become seriously
ill, suffering from Addison's disease, and on October 31, 1942,
she sent for her religious adviser and confessor, Mons.
Vicente Fernandez of the Quiapo Church to make confession,
after which she expressed her desire to have a mass
celebrated in her house at No. 366 Raon Street, City of
Manila, so that she might take holy communion, in view of
her condition; that following the request of Encarnacion
Neyra, Mons. Fernandez caused the necessary arrangements
to be made for the celebration of holy mass in the house of
Encarnacion Neyra, and, as a matter of fact, on November 1,
1942, holy mass was solemnized in her house, Fr. Teodoro
Garcia, also of the Quiapo Church, officiating in said
ceremony, on which occasion, Encarnacion Neyra, who
remained in bed, took holy communion; that after said
religious ceremony had been terminated, Father Garcia talked
to Encarnacion Neyra and advised reconciliation between the
two sisters, Encarnacion Neyra and Trinidad Neyra.
Encarnacion Neyra accepted said advice and at about noon of
the same day (November 1, 1942), sent Eustaquio Mendoza
to fetch her sister Trinidad Neyra, who came at about 2:30
that same afternoon; that on seeing one another, the two
greeted each other in a most affectionate manner, and
became reconciled; that the two had a long and cordial
conversation, in the course of which the two sisters also
talked about the properties left by their deceased father and
their litigations which had reached the Court of Appeals for
the City of Manila, and they agreed to have the said appeal
dismissed, on the condition that the property involved
therein, consisting of a small house and lot, should be given
exclusively to Trinidad Neyra, on the condition that the latter
should waive her claim for her share in the rents of said
property, while under the administration of Encarnacion
Neyra, and that the two should renounce their mutual claims
against one another. It was also agreed between the two
sisters to send for Atty. Alejandro M. Panis, to prepare the
necessary document embodying the said agreement, but
Attorney Panis could come only in the afternoon of the
following day, November 2, 1942, when Encarnacion gave him
instructions for the preparation of the document embodying
their agreement, and other instructions relative to the
disposition she wanted to make of her properties in her last
will and testament; that Attorney Panis prepared said
document of compromise or agreement marked as Exhibit D,
as well as the new will and testament marked as Exhibit C,
naming Trinidad Neyra and Eustaquio Mendoza beneficiaries
therein, pursuant to the express instructions given by
Encarnacion Neyra, and said instruments were ready for
signature on November 3, 1942; that in the afternoon of that
day, November 3, 1942; Attorney Panis read said will and
testament marked as Exhibit D to Encarnacion Neyra slowly
and in a loud voice, in the presence of Fr. Teodoro Garcia, Dr.
Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad
Neyra, and others, after which he asked her if its terms were
in accordance with her wishes, if she had anything else to
add, or anything to be changed in said will; and as
Encarnacion Neyra stated that the terms of said will were in
accordance with her wishes and express instructions, she
asked for the pad and the will Exhibit C and, with the help of a
son of herein petitioner, placed her thumb mark at the foot of
said will, in the presence of the three attesting witnesses, Dr.
Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M.
Panis, after which the attesting witnesses signed at the foot of
the document, in the presence of the testatrix Encarnacion
Neyra, and of each and everyone of the other attesting
witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra
and several others were also present.
On November 4, 1942, the testatrix Encarnacion Neyra, due
to a heart attack, unexpectedly died.
Although the "Congregacion de Religiosas de la Virgen Maria"
had again decided not to accept the provision made in its
favor by the testatrix Encarnacion Neyra in the proposed
codicil prepared by Atty. Ricardo Sikat, said decision could not
be communicated to the testatrix, before her death.
Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as
to the request made on October 31, 1942, by Encarnacion
Neyra for the celebration of holy mass in her house, on
November 1, 1942; that said mass was in fact solemnized in
her house, on that date, in the course of which the testatrix
Encarnacion Neyra took holy communion; that on the same
day, after the mass, Encarnacion held a long conversation
with Father Garcia, in the course of which, said priest advised
her to have reconciliation with her sister Trinidad; and that
said advise was accepted by Encarnacion.
But the testimony of Trinidad Neyra, it has been shown that
Encarnacion sent Eustaquio Mendoza to fetch her, and that in
fact she came to the house of Encarnacion, at about 2:30
o'clock in the afternoon that same day, November 1, 1942,
with said Eustaquio Mendoza; that on seeing one another,
Encarnacion and Trinidad Neyra greeted each other most
affectionately, forgiving one another, after which they talked
about the property left by their deceased father and the
litigation pending between them; and the two sisters agreed
to settle their case, which had been elevated to the Court of
Appeals for the City of Manila, concerning a certain house
and lot, on the understanding that said property should be
given exclusively to Trinidad, and that the latter should
renounce her claim against Encarnacion, for her share in the
rents collected on said property, and, at the same time,
Encarnacion renounced her claim for P727.77 against
Trinidad; and that it was also agreed between the two sisters
that Atty. Alejandro M. Panis should be called to prepare the
necessary papers for the settlement of said case.
Presentacion Blanco, a witness for the oppositors, also
testified substantially to the foregoing facts.
By the testimony of Trinidad Neyra and Atty. Alejandro M.
Panis, and the other attesting witnesses, it has also been
shown that Atty. Alejandro M. Panis came in the afternoon of
the following day, November 2, 1942, and received
instructions from Encarnacion Neyra, not only for the
preparation of said agreement, but also for the preparation of
a new will, and consequently Attorney Panis prepared said
document of compromise and the will, dated November 3,
1942, which were both thumb marked, in duplicate, in the
afternoon of that day, by Encarnacion Neyra, who was then of
sound mind, as shown by her appearance and conversation,
aided by a son of Trinidad Neyra, on her bed in the sala, in the
presence of the attesting witnesses, Dr. Moises B. Abad, Dr.
Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in
the presence of the testatrix and of each other.
Father Teodoro Garcia was also present at the signing of the
will, at the request of Encarnacion Neyra, and so was Trinidad
Neyra.
On November 4, 1942, due to a heart attack as a consequence
of Addison's disease, perhaps, Encarnacion Neyra expired, at
about 3 o'clock in the morning.
Oppositor Teodora Neyra, her young daughter Ceferina de la
Cruz, and Presentacion Blanco, daughter of oppositor Maria
Jacobo Vda. de Blanco, practically corroborated the testimony
of the witnesses of the petitioner, with reference to the
signing of documents, in the bedroom of Encarnacion Neyra,
on November 3, 1942.
Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz,
witnesses for the oppositors, testified, however, that when
the thumb mark of Encarnacion Neyra was affixed, as stated
above, to the document of compromise in question, dated
November 3, 1942, she was sleeping on her bed in the sala;
and that the attesting witnesses were not present, as they
were in the caida.
But Ceferina de la Cruz, witness for the oppositors, also stated
that the attesting witnesses signed the documents thumb
marked by Encarnacion Neyra, in the sala near her bed, thus
contradicting herself and Teodora Neyra and Presentacion
Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and
Ceferina de la Cruz also testified that Encarnacion Neyra's
thumb mark was affixed to the will, only in the morning of
November 4, 1942, by Trinidad Neyra and Ildefonso del
Barrio, when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert,
as to the nature and effects of Addison's disease, is absolutely
unreliable. He had never seen or talked to the testatrix
Encarnacion Neyra.
According to the medical authorities, the cause or causes of
the sleeping sickness, known as Addison's disease, are not yet
fully known: that persons attacked by said decease often live
as long as ten (10) years after the first attack, while others die
after a few weeks only, and that as the disease, progresses,
asthenia sets in, and from 80 per cent to 90 per cent of the
patients develop tuberculosis, and complications of the heart
also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp.
1250, 1252, 1253; MaCrae, Osler's Modern Medicine, 3d ed.,
Vol. V. pp. 272-279).
And it has been conclusively shown in this case that the
testatrix Encarnacion Neyra, at the age of 48, died on
November 4, 1942, due to a heart attack, after an illness of
about two (2) years.
In connection with testamentary capacity, in several cases,
this court has considered the testimony of witnesses, who
had known and talked to the testators, more trustworthy than
the testimony of alleged medical experts.
Testamentary capacity is the capacity to comprehend the
nature of the transaction in which the testator is engaged at
the time, to recollect the property to be disposed of, and the
persons who would naturally be supposed to have claims
upon the testator, and to comprehend the manner in which
the instrument will distribute his property among the objects
of his bounty. (Bugnao vs. Ubag. 14 Phil., 163.)
Insomnia, in spite of the testimony of two doctors who
testified for the opponents to the probate of a will, who
stated that it tended to destroy mental capacity, was held not
to affect the full possession of the mental faculties deemed
necessary and sufficient for its execution.
(Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to
have been compos mentis, in spite of the physician's
testimony to the contrary, to the effect that she was very
weak, being in the third or last stage of tuberculosis. (Yap
Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The
testimony testimony of the attending physician that the
deceased was suffering from diabetes and had been in a
comatose for several days, prior to his death, was held not
sufficient to establish testamentary incapacity, in view of the
positive statement of several credible witnesses that he was
conscious and able to understand what said to him and to
communicate his desires. (Samson vs. Corrales Tan Quintin, 44
Phil., 573.) Where the mind of the testator is in perfectly
sound condition, neither old age, nor ill health, nor the fact
that somebody had to guide his hand in order that he might
sign, is sufficient to invalidate his will. (Amata and
Almojuela vs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after
the execution of the will, the testator intelligently and
intelligibly conversed with other persons, although lying down
and unable to move or stand up unassisted, but could still
effect the sale of property belonging to him, these
circumstances show that the testator was in a perfectly sound
mental condition at the time of executing the will. (Amata and
Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination,
frankly admitted that, in the morning and also at about 6
o'clock in the afternoon of November 3, 1942, Encarnacion
Neyra talked to her and that they understood each other
clearly, thus showing that the testatrix was really of sound
mind, at the time of the signing and execution of the
agreement and will in question.
It may, therefore, be reasonably concluded that the mental
faculties of persons suffering from Addison's disease, like the
testatrix in this case, remain unimpaired, partly due to the
fact that, on account of the sleep they enjoy, they necessarily
receive the benefit of physical and mental rest. And that like
patients suffering from tuberculosis, insomnia or diabetes,
they preserve their mental faculties until the moments of
their death.
Judging by the authorities above cited, the conclusion made
the trial court that the testatrix Encarnacion Neyra was of
sound mind and possessed testamentary capacity, at the time
of the execution of the will, cannot be properly disturbed.
The oppositors also claim that the attesting witnesses were
not present, at the time that the testatrix thumbed marked
the will in question, on her bed, in the sala of the house, as
they were allegedly in the caida. But it has been fully shown
that the attesting witnesses were present at the time of the
signing and execution of the agreement and will in question,
in the sala, where the testatrix was lying on her bed. The true
test is not whether they actually saw each other, at the time
of the signing of the will, but whether they might have seen
each other sign, had they chosen to do so; and the attesting
witnesses actually saw it in this case. (Jaboneta vs. Gustilo, 5
Phil., 541.) And the thumbmark placed by the testatrix on the
will is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan
and Yap Ca Llu, 27 Phil., 579.)
The oppositors as well as their principal witnesses are all
interested parties, as said oppositors had been named
legatees in the will dated September 14, 1939, but eliminated
from the will dated November 3, 1942.
On the other hand, the witnesses for the petitioner are all
trustworthy men, who had absolutely no interest in the final
outcome of this case. Two of them are ministers of the
Gospel, while the three attesting witnesses are professional
men of irreproachable character, who had known and seen
and talked to the testatrix.
Furthermore, the testimony of the oppositors and their
witnesses, to the effect that there could have been no
reconciliation between the two sisters, and that the thumb
mark of Encarnacion Neyra was affixed to the document
embodying the agreement, while she was sleeping, on
November 3, 1942, in their presence; and that her thumb
mark was affixed to the will in question, when she was
already dead, in the morning of November 4, 1942, within
their view is preposterous, to say the least. Said testimony is
contrary to common sense. It violates all sense of proportion.
The oppositors and their witnesses could not have told the
truth; they have testified to brazen falsehoods; and they are,
therefore, absolutely unworthy of belief. And to the evidence
of the oppositors is completely applicable the rule falsus in
uno, falsus in omnibus. (Gonzales vs. Mauricio, 53 Phil., 728,
735.)
In the brief presented by counsel for the oppositors and the
appellants, to show the alleged improbability of the
reconciliation of the two sisters and the execution of the will,
dated November 3, 1942, they have erroneously placed great
reliance on the facts that, up to October 31, 1942, the two
sisters Encarnacion and Trinidad Neyra were bitter enemies.
They were banking evidently on the common belief that the
hatred of relatives is the most violent. Dreadful indeed are
the feuds of relatives, and difficult the reconciliation. But they
had forgotten the fact that Encarnacion Neyra was a religious
and pious woman instructed in the ancient virtues of
Christian faith and hope and charity, and that it was godly to
forgive and better still to forget.
The conduct of Encarnacion Neyra, in making altogether a
new will, with new beneficiaries named therein, including
principally her bitterest enemy of late, which is completely
incompatible with the will, dated September 14, 1939, may
really seem strange and unusual; but, as it has been truly said,
above the logic of the head is the feeling in the heart, and the
heart has reasons of its own which the head cannot always
understand, as in the case of intuitive knowledge of eternal
verity.
As Encarnacion Neyra felt the advent of immortality, she
naturally wanted to follow "the path of the just, which is as
the shining light that shineth more and more unto the perfect
day," so that her memory may be blessed. As a Christian
woman, she must have loved justice, mercy and truth and to
follow the law, for this is the whole duty of man.
In the present case, the court cannot find any reason or
justification to alter the conclusions set forth in the decree
appealed from. This court will not reverse any findings of fact
by the trial court made upon conflicting testimony and
depending largely upon the credibility of witnesses, who
testified in the presence of the trial judge, unless the court
below failed to take into consideration some material facts or
circumstances, or to weigh accurately all of the material facts
and circumstances presented to it for consideration.
(Baltazar vs. Alberto, 33 Phil., 336; Melliza vs.Towle, 34 Phil.,
345; Caragay vs. Urquiza, 53 Phil., 72, 79; Garcia vs. Garcia de
Bartolome, 63 Phil., 419.)
After a careful consideration of the evidence and the law of
this case, we find it legally impossible to sustain any of the
errors assigned by the appellants. The judgment appealed
from is, therefore, affirmed, with costs against the appellants.
So ordered.

It was most natural that there should have been reconciliation

between the two sisters, Encarnacion and Trinidad Neyra, as
the latter is the nearest relative of the former, her only sister
of the whole blood. The approach of imminent death must
have evoked in her the tenderest recollections of childhood.
And believing perhaps that her little triumphs had not always
been fair to her sister who in fact, had had successively
instituted two suits against her, to recover what was her due,
and for which Encarnacion believed she must atone, she
finally decided upon reconciliation, so that she might depart
in peace.

The record shows that, of the two, Encarnacion lived in

greater opulence, and that Trinidad had been demanding
tenaciously her share; and as a Christian woman, Encarnacion
must have known that no one has any right to enrich himself
unjustly, at the expense of another. And it was, therefore,
natural that Encarnacion should desire reconciliation with her
sister Trinidad, and provide for her in her last will and
testament.

As for Eustaquio Mendoza, who, according to the evidence,

had served Encarnacion Neyra for so many years and so well,
it was also natural that she should make some provision for
him, as gratitude is the noblest sentiment that springs from
the human heart.

G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu
admitted to probate Ana Abangan's will executed July, 1916.
From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists
of two sheets, the first of which contains all of the disposition
of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet
contains only the attestation clause duly signed at the bottom
by the three instrumental witnesses. Neither of these sheets
is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions,
according to appellants' contention, are defects whereby the
probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also
be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 (which
is the one applicable in the case) evidently has for its object
(referring to the body of the will itself) to avoid the
substitution of any of said sheets, thereby changing the
testator's dispositions. But when these dispositions are wholly
written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their
signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have
referred to the sheets which the testator and the witnesses
do not have to sign at the bottom. A different interpretation
would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot
attribute to the statute such an intention. As these signatures
must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at
the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unneccessary; and if
they do not guaranty, same signatures, affixed on another
part of same sheet, would add nothing. We cannot assume
that the statute regards of such importance the place where
the testator and the witnesses must sign on the sheet that it
would consider that their signatures written on the bottom do
not guaranty the authenticity of the sheet but, if repeated on
the margin, give sufficient security.
In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645 is
to know whether any sheet of the will has been removed.
But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot
be hidden.
What has been said is also applicable to the attestation
clause. Wherefore, without considering whether or not this
clause is an essential part of the will, we hold that in the one
accompanying the will in question, the signatures of the
testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the
signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of
two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation
clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further
signed on their margins by the testator and the witnesses, or
be paged.
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these
primordal ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So
when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and
frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do
not show that the testarix knew the dialect in which the will is
written. But the circumstance appearing in the will itself that
same was executed in the city of Cebu and in the dialect of
this locality where the testatrix was a neighbor is enough, in
the absence of any proof to the contrary, to presume that she
knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed
from is hereby affirmed with costs against the appellants. So
ordered.

G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the
due execution of the instrument propounded as a will in the
court below, is whether one of the subscribing witnesses was
present in the small room where it was executed at the time
when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large room
connecting with the smaller room by a doorway, across which
was hung a curtain which made it impossible for one in the
outside room to see the testator and the other subscribing
witnesses in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator
and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding,
of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate
as the last will and testament of the deceased.
that the testator and the subscribing witnesses may be held
to have executed the instrument in the presence of each
other if it appears that they would not have been able to see
each other sign at that moment, without changing their
relative positions or existing conditions. The evidence in the
case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he
was actually and physically present and in such position with
relation to Jaboneta that he could see everything that took
place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so."
And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses
to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment
existing conditions and their position with relation to each
other were such that by merely casting the eyes in the proper
direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in
the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the
instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs
of this instance against the appellant.

The trial judge does not appear to have considered the

determination of this question of fact of vital importance in
the determination of this case, as he was of opinion that
under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will.
But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room,
it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the
line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded
by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held
that:

The true test of presence of the testator and the

witnesses in the execution of a will is not whether
they actually saw each other sign, but whether they
might have been seen each other sign, had they
chosen to do so, considering their mental and
physical condition and position with relation to each
other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties

with relation to each other at the moment of the subscription
of each signature, must be such that they may see each other
sign if they choose to do so. This, of course, does not mean

G.R. No. L-21755 December 29, 1924
In the matter of the testate estate of Antonio Mojal,
deceased. FILOMENA NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-
appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.
ROMUALDEZ, J.:
This is a proceeding for the probate of the will of the
deceased Antonio Mojal instituted by his surviving spouse,
Filomena Nayve. The probate is opposed by Leona Mojal and
Luciana Aguilar, sister and niece, respectively, of the
deceased.
The Court of First Instance of Albay, which tried the case,
overruled the objections to the will, and ordered the probate
thereof, holding that the document in controversy was the
last will and testament of Antonio Mojal, executed in
accordance with law. From this judgment the opponents
appeal, assigning error to the decree of the court allowing the
will to probate and overruling their opposition.
The will in question, Exhibit A, is composed of four sheets
with written matter on only side of each, that is, four pages
written on four sheets. The four sides or pages containing
written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4,"
successively. Each of the first two sides or pages, which was
issued, was signed by the testator and the three witnesses on
the margin, left side of the reader. On the third page actually
used, the signatures of the three witnesses appear also on
the margin, left side of the reader, but the signature of the
testator is not on the margin, but about the middle of the
page, at the end of the will and before the attestation clause.
On the fourth page, the signatures of the witnesses do not
appear on the margin, but at the bottom of the attestation
clause, it being the signature of the testator that is on the
margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the
witnesses on each and every sheet on the left margin; (b) the
fact of the sheets of the document not being paged with
letters; (c) the fact that the attestation clause does not state
the number of sheets or pages actually used of the will; and
(d) the fact that the testator does not appear to have signed
all the sheets in the presence of the three witnesses, and the
latter to have attested and signed all the sheets in the
presence of the testator and of each other.
As to the signatures on the margin, it is true, as above stated,
that the third page actually used was signed by the testator,
not on the left margin, as it was by the witnesses, but about
the middle of the page and the end of the will; and that the
fourth page was signed by the witnesses, not on the left
margin, as it was by the testator, but about the middle of the
page and at the end of the attestation clause.
In this respect the holding of this court in the case of Avera
vs. Garcia and Rodriguez (42 Phil., 145), is applicable, wherein
the will in question was signed by the testator and the
witnesses, not on the left, but right, margin. The rule laid
down in that case is that the document contained the
necessary signatures on each page, whereby each page of the
will was authenticated and safeguarded against any possible
alteration. In that case, the validity of the will was sustained,
and consequently it was allowed to probate.
Applying that doctrine to the instant case, we hold that, as
each and every page used of the will bears the signatures of
the testator and the witnesses, the fact that said signatures
do not all appear on the left margin of each page does not
detract from the validity of the will.lawphi1.net
Turning to the second defect alleged, that is to say, the fact
that the sheets of the document are not paged with letters,
suffice it to cite the case of Unson vs. Abella (43 Phil., 494),
where this court held that paging with Arabic numerals and
not with letters, as in the case before us, is within the spirit of
the law and is just as valid as paging with letters.
As to the proposition that the attestation clause does not
state the number of sheets or pages of the will, which is the
third defect assigned, it must be noted that the last paragraph
of the will here in question and the attestation clause, coming
next to it, are of the following tenor:
In witness whereof, I set my hand unto this will
here in the town of Camalig, Albay, Philippine
Islands, this 26th day of November, nineteen
hundred and eighteen, composed of four
sheets, including the next:
ANTONIO
MOJAL
(Signed and declared by the testator Don
Antonio Mojal to be his last will and testament
in the presence of each of us, and at the
request of said testator Don Antonio Mojal, we
signed this will in the presence of each other
and of the testator.)
PEDRO
CARO
SILVERIO
MORCO
ZOILO
MASINAS
As may be seen, the number of sheets is stated in said last
paragraph of the will. It is true that in the case of Uy Coque
vs. Navas L. Sioca (43 Phil., 405), it was held that the
attestation clause must state the number of sheets or pages
composing the will; but when, as in the case before us, such
fact, while it is not stated in the attestation clause, appears at
the end of the will proper, so that no proof aliunde is
necessary of the number of the sheets of the will, then there
can be no doubt that it complies with the intention of the law
that the number of sheets of which the will is composed be
shown by the document itself, to prevent the number of the
sheets of the will from being unduly increased or decreased.
With regard to the last defect pointed out, namely, that the
testator does not appear to have signed on all the sheets of
the will in the presence of the three witnesses, and the latter
to have attested and signed on all the sheets in the presence
of the testator and of each other, it must be noted that in the
attestation clause above set out it is said that the testator
signed the will "in the presence of each of the witnesses" and
the latter signed "in the presence of each other and of the
testator." So that, as to whether the testator and the attesting
witnesses saw each other sign the will, such a requirement
was clearly and sufficiently complied with. What is not stated
in this clause is whether the testator and the witnesses signed
all the sheets of the will.

The act of the testator and the witnesses seeing reciprocally

the signing of the will is one which cannot be proven by the
mere exhibition of the will unless it is stated in the document.
And this fact is expressly stated in the attestation clause now
before us. But the fact of the testator and the witnesses
having signed all the sheets of the will may be proven by the
mere examination of the document, although it does not say
anything about this, and if that is the fact, as it is in the
instant case, the danger of fraud in this respect, which is what
the law tries to avoid, does not exist.

Therefore, as in the instant case the fact that the testator and
the witnesses signed each and every page of the will is proven
by the mere examination of the signatures in the will, the
omission to expressly state such evident fact does not
invalidate the will nor prevent its probate.

The order appealed from is affirmed with the costs against

the appellants. So ordered.

G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Presented for resolution by this Court in the present petition
for review on certiorari is the issue of whether or not the
attestation clause contained in the last will and testament of
the late Mateo Caballero complies with the requirements of
Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in the
twilight years of his life, executed a last will and testament at
his residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer,
Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will. 1 It was declared
therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,
Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara,
all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding No.
3899-R before Branch II of the then Court of First Instance of
Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979
but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the
testator passed away before his petition could finally be heard
by the probate court.3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his appointment
as special administrator of the testator's estate, the estimated
value of which was P24,000.00, and he was so appointed by
the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and
nieces of the testator, instituted a second petition, entitled "In
the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX
of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R
in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the
appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate
court, now known as Branch XV of the Regional Trial Court of
Cebu, appointed William Cabrera as special administrator on
June 21, 1983. Thereafter, on July 20, 1983, it issued an order
for the return of the records of Special Proceeding No. 3965-R
to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984
the case was reraffled and eventually assigned to Branch XII of
the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R,
herein petitioners appeared as oppositors and objected to the
allowance of the testator's will on the ground that on the
alleged date of its execution, the testator was already in the
poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as
to the genuineness of the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified
that the testator executed the will in question in their
presence while he was of sound and disposing mind and that,
contrary to the assertions of the oppositors, Mateo Caballero
was in good health and was not unduly influenced in any way
in the execution of his will. Labuca also testified that he and
the other witnesses attested and signed the will in the
presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate
hearing as the had died by then.8
On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and testament of
the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated
the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the
start, counsel for the oppositors manifested that he would
want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they abandoned the idea
and instead presented Aurea Caballero and Helen Caballero
Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the
Last Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law. 9
Undaunted by the said judgment of the probate court,
petitioners elevated the case in the Court of Appeals in CA-
G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation
clause is fatally defective since it fails to specifically state that
the instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed the
will and all the pages thereof in the presence of the testator
and of one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy complied
with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim
to be defective is "we do certify that the testament was read
by him and the attestator, Mateo Caballero, has published
unto us the foregoing will consisting of THREE PAGES,
including the acknowledgment, each page numbered
correlatively in letters of the upper part of each page, as his
Last Will and Testament, and he has signed the same and
every page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said
testator and in the presence of each and all of us (emphasis
supplied).
To our thinking, this is sufficient compliance and no evidence
need be presented to indicate the meaning that the said will
was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the
language of the law would have it that the testator signed the
will "in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another." If
not completely or ideally perfect in accordance with the
wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's
resolution of January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent court has ruled
upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the
last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall
shortly hereafter, after some prefatory observations which we
feel should be made in aid of the rationale for our resolution
of the controversy.
1. A will has been defined as a species of conveyance whereby
a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate
after his death. 13 Under the Civil Code, there are two kinds of
wills which a testator may execute.14 the first kind is the
ordinary or attested will, the execution of which is governed
by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation should state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a
notary public by a testator and the attesting witness. 15hence
it is likewise known as notarial will. Where the attestator is
deaf or deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should
designate two persons who would read the will and
communicate its contents to him in a practicable manner. On
the other hand, if the testator is blind, the will should be read
to him twice; once, by anyone of the witnesses thereto, and
then again, by the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by
the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement
in both kinds of will is that they should be in writing and must
have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its
attestation clause need not be written in a language or dialect
known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in
the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805
merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument
has been executed before them and to the manner of the
execution the same. 19 It is a separate memorandum or record
of the facts surrounding the conduct of execution and once
signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has
been observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the
memory of the attesting witnesses, or other casualty, such
facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the
will, 22 should state (1) the number of the pages used upon
which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and (3) that
the attesting witnesses witnessed the signing by the testator
of the will and all its pages, and that saidwitnesses also
signed the will and every page thereof in the presence of the
testator and of one another.
The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of
its pages and to prevent any increase or decrease in the
pages;23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose
of authentication and identification, and thus indicates that
the will is the very same instrument executed by the testator
and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses
thereby declare the due execution of the will as embodied in
the attestation clause.25 The attestation clause, therefore,
provide strong legal guaranties for the due execution of a will
and to insure the authenticity thereof.26 As it appertains only
to the witnesses and not to the testator, it need be signed
only by them.27 Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add
the clause on a subsequent occasion in the absence of the
testator and its witnesses.28
In its report, the Code Commission commented on the
reasons of the law for requiring the formalities to be followed
in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all of
which have been numbered correlatively, with the left margin
of each page thereof bearing the respective signatures of the
testator and the three attesting witnesses. The part of the will
containing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot thereof by
the testator. The attestation clause in question, on the other
hand, is recited in the English language and is likewise signed
at the end thereof by the three attesting witnesses
hereto.30 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences
and postal addresses appear on the Opposite of our
respective names, we do hereby certify that the Testament
was read by him and the testator, MATEO CABALLERO; has
published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as
his Last Will and Testament and he has the same and every
page thereof, on the spaces provided for his signature and on
the left hand margin, in the presence of the said testator and
in the presence of each and all of us.
It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the presence of
the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former
is mental, the latter mechanical, and to attest a will is to know
that it was published as such, and to certify the facts required
to constitute an actual and legal publication; but to subscribe
a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of
identification.31
In Taboada vs. Rizal,32 we clarified that attestation consists in
witnessing the testator's execution of the will in order to see
and take note mentally that those things are done which the
statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the
same paper for the purpose of identification of such paper as
the will which was executed by the testator. As it involves a
mental act, there would be no means, therefore, of
ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator
and of each other unless this is substantially expressed in the
attestation.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the
third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting
witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the same
does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in
the presence of the testator and of each other.
The phrase "and he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to
likewise signify and refer to the witnesses, it must, however,
be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed
the will and every page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation
clause obviously cannot be characterized as merely involving
the form of the will or the language used therein which would
warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is
not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article
805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each
page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it
was indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed
to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations,
the will cannot be stamped with the imprimatur of
effectivity.33
We believe that the further comment of former Justice J.B.L.
Reyes34 regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is
correct and should be applied in the case under
consideration, as well as to future cases with similar
questions:
. . . The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether
all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All
theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation
clause, being the only check against perjury in the probate
proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects
and imperfections must only be with respect to the form of
the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid
should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and
attestation has been held to be limited to merely an
examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a
situation, the defect is not only in the form or language of the
attestation clause but the total absence of a specific element
required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible
way by which we can read into the questioned attestation
clause statement, or an implication thereof, that the attesting
witness did actually bear witness to the signing by the
testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article
809 cannot be revoked or relied on by respondents since it
presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not
stated in the omitted textual requirements were actually
complied within the execution of the will. In other words,
defects must be remedied by intrinsic evidence supplied by
the will itself.
In the case at bar, contrarily, proof of the acts required to
have been performed by the attesting witnesses can be
supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis
whatsoever from with such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the
fact that he is thereby resorting to extrinsic evidence to prove
the same and would accordingly be doing by the indirection
what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950,
there was a divergence of views as to which manner of
interpretation should be followed in resolving issues centering
on compliance with the legal formalities required in the
execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in
Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule.
This was first laid down in the case of Abangan vs.
Abangan,36 where it was held that the object of the
solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an
interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative
of the testator's last will, must be disregarded. The
subsequent cases of Avera vs. Garcia,37 Aldaba vs.
Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez
vs. Vergel de Dios, et al.,41and Nayve vs. Mojal, et al.42 all
adhered to this position.
The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the
execution of wills are mandatory in nature and are to be
strictly construed was followed in the subsequent cases of In
the Matter of the Estate of Saguinsin,43 In re Will of
Andrada,44 Uy Coque vs. Sioca,45 In re Estate of
Neumark, 46and Sano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the
occasion to clarify the seemingly conflicting decisions in the
aforementioned cases. In said case of Gumban, the
attestation clause had failed to state that the witnesses signed
the will and each and every page thereof on the left margin in
the presence of the testator. The will in question was
disallowed, with these reasons therefor:
In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of this
court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca
[1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46
Phil., 841), and ending with Sano vs. Quintana ([1925], 48
Phil., 506). Appellee counters with the citation of a series of
cases beginning with Abangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922),
and culminating in Nayve vs. Mojal and Aguilar ([1924], 47
Phil., 152). In its last analysis, our task is to contrast and, if
possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana, supra,
and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and
the witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will, if
it is not stated therein. It was also held that the fact that the
testator and the witnesses signed each and every page of the
will can be proved also by the mere examination of the
signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the
will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely on
one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of the
court, less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal
dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision
was promulgated in December, 1925; the Quintana decision
was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to
the applicable provisions of the law.
The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section
that "The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634
provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there
were decisions of the Court that once more appeared to
revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs.
Morata,49Rodriguez vs. Alcala,50 Enchevarria vs.
Sarmiento,51 and Testate Estate of Toray52 went the way of the
ruling as restated in Gumban. But De Gala vs. Gonzales, et
al.,53 Rey vs. Cartagena,54 De Ticson vs. De
Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs.
Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro,64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter
of views and of the undeniable inclination towards a liberal
construction, recommended the codification of the
substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach
to the interpretation of wills. Said rule thus became what is
now Article 809 of the Civil Code, with this explanation of the
Code Commission:
The present law provides for only one form of executing a
will, and that is, in accordance with the formalities prescribed
by Section 618 of the Code of Civil Procedure as amended by
Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section
618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs. Sioca,
43 Phil. 405). These decisions necessarily restrained the
freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of
the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it
has practically gone back to the original provisions of Section
618 of the Code of Civil Procedure before its amendment by
Act No. 2645 in the year 1916. To turn this attitude into a
legislative declaration and to attain the main objective of the
proposed Code in the liberalization of the manner of
executing wills, article 829 of the Project is recommended,
which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of article 829." 65
The so-called liberal rule, the Court said in Gil vs.
Murciano,66 "does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions
do tell us when and where to stop; they draw the dividing line
with precision. They do not allow evidence aliunde to fill a
void in any part of the document or supply missing details
that should appear in the will itself. They only permit a probe
into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire
results."
It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the

impugned decision of respondent court is hereby REVERSED
and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition
for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In
the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement
of the estate of the said decedent.

SO ORDERED.

G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA
MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND
ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to
us. In fact, two other cases directly related to the present one
and involving the same parties had already been decided by
us in the past. In G.R. No. L-30479, 1 which was a petition for
certiorari and mandamus instituted by the petitioners herein,
we dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling,
the petitioners commenced in the then Court of First Instance
of Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents
presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court
on a petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed it to
proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985,
affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no
avail, hence, this petition.
For a better understanding of the controversy, a factual
account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs
her niece and nephews, the petitioners Aldina Maloto-
Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these
four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt's estate. The case
was instituted in the then Court of First Instance of Iloilo and
was docketed as Special Proceeding No. 1736. However, while
the case was still in progress, or to be exact on February 1,
1964, the parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of
Adriana's estate. The agreement provided for the division of
the estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did
on March 21, 1964. That should have signalled the end of the
controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late Atty.
Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original
copy, while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The document
was submitted to the office of the clerk of the Court of First
Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had
earlier signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo de
Molo, the Roman Catholic Church of Molo, and Purificacion
Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the
other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance
of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we
stated earlier, we dismissed that petition and advised that a
separate proceeding for the probate of the alleged will would
be the appropriate vehicle to thresh out the matters raised by
the petitioners.
Significantly, the appellate court while finding as inconclusive
the matter on whether or not the document or papers
allegedly burned by the househelp of Adriana, Guadalupe
Maloto Vda. de Coral, upon instructions of the testatrix, was
indeed the will, contradicted itself and found that the will had
been revoked. The respondent court stated that the presence
of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court
based its finding on the facts that the document was not in
the two safes in Adriana's residence, by the testatrix going to
the residence of Atty. Hervas to retrieve a copy of the will left
in the latter's possession, and, her seeking the services of
Atty. Palma in order to have a new will drawn up. For reasons
shortly to be explained, we do not view such facts, even
considered collectively, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the
testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was
revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue
can be found in Article 830.
Art. 830. No will shall be revoked except in
the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by
some other person in his presence, and by
his express direction. If burned, torn
cancelled, or obliterated by some other
person, without the express direction of the
testator, the will may still be established,
and the estate distributed in accordance
therewith, if its contents, and due execution,
and the fact of its unauthorized destruction,
cancellation, or obliteration are established
 according to the Rules of Court. (Emphasis
Supplied.)
It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that
the physical destruction be done by the testator himself. It
may be performed by another person but under theexpress
direction and in the presence of the testator. Of course, it goes
without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi or the intention to
revoke, may be conceded, for that is a state of mind, yet that
requisite alone would not suffice. "Animus revocandi is only
one of the necessary elements for the effective revocation of
a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator
or by another person in his presence and under his express
direction. There is paucity of evidence to show compliance
with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to have
been done under the express direction of Adriana. And then,
the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the
only ones present at the place where the stove (presumably
in the kitchen) was located in which the papers proffered as a
will were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the
trial court, concluded that the testimony of the two witnesses
who testified in favor of the will's revocation appear
"inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates,
were unequivocably positive that the document burned was
indeed Adriana's will. Guadalupe, we think, believed that the
papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this
point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter
of public interest that a purported win is not denied
legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its
very foundations ...."4
The private respondents in their bid for the dismissal of the
present action for probate instituted by the petitioners argue
that the same is already barred by res adjudicata. They claim
that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16, 1968 of the
trial court in the intestate proceeding (Special Proceeding No.
1736) denying their (petitioners') motion to reopen the case,
and their prayer to annul the previous proceedings therein
and to allow the last will and testament of the late Adriana
Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the
present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment
on the merits; and (4) there is, between the first and the
second action, Identity of parties, of subject matter, and of
cause of action. 5 We do not find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no final judgment
rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special
Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that
judgment could not in any manner be construed to be final
with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of
the action for probate. This is understandably so because the
trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested
will . 6 After all, an action for probate, as it implies, is founded
on the presence of a will and with the objective of proving its
due execution and validity, something which can not be
properly done in an intestate settlement of estate proceeding
which is predicated on the assumption that the decedent left
no will. Thus, there is likewise no Identity between the cause
of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it
was precisely because of our ruling in G.R. No. L-30479 that
the petitioners instituted this separate action for the probate
of the late Adriana Maloto's will. Hence, on these grounds
alone, the position of the private respondents on this score
can not be sustained.
One last note. The private respondents point out that
revocation could be inferred from the fact that "(a) major and
substantial bulk of the properties mentioned in the will had
been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix);
and, furthermore, more valuable properties have been
acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to
this special proceeding, they could only be appropriately
taken up after the will has been duly probated and a
certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and
SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court
of Appeals, and a new one ENTERED for the allowance of
Adriana Maloto's last will and testament. Costs against the
private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.

G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance
of Rizal admitting to probate the last will and testament of the
deceased Mariano Molo y Legaspi executed on August 17,
1918. The oppositors-appellants brought the case on appeal
to this Court for the reason that the value of the properties
involved exceeds P50,000.
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,
(Exhibit A) and another executed on June 20, 1939. (Exhibit I).
The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the
Court of First Instance of Rizal a petition, which was docketed
as special proceeding No. 8022 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, the order of the court
admitting the will to probate was set aside and the case was
reopened. After hearing, at which both parties presented
their evidence, the court rendered 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.
In view of the disallowance of the will executed on June 20,
1939, the widow on February 24, 1944, filed another petition
for the probate of the will executed by the deceased on
August 17, 1918, which was docketed as special proceeding
No. 56, in the same court. Again, the same oppositors 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. Consequently, a petition for
reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As a result,
petitioner 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 already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors,
to wit.
I. The probate court erred in not holding that the
present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20,
1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another alleged
will of Molo dated 191.
II. The court a quo erred in not holding that the
petitioner is now estopped from seeking the probate
of Molo's alleged will of 1918.
III. The lower court erred in not holding that
petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that
Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.
V. The probate court erred in not holding that the
alleged will of 1918 was deliberately revoked by
Molo himself.
VI. The lower court erred in not holding that Molo's
will of 1918 was subsequently revoked by the
decedent's will of 1939.
In their first assignment of error, counsel for oppositors
contend that the probate court erred in not holding that the
petitioner voluntarily and deliberately frustrated the probate
of the will dated June 20, 1939, in order to enable her to
obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances
with their opinion indicate that petitioner connived with the
witness Canuto Perez in an effort to defeat and frustrate the
probate of the 1939 will because of her knowledge that said
will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the appellants
contend, constitute a series of steps deliberately taken by
petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed
in connection with special proceedings No. 8022, now closed
and terminated, are vigorously met by counsel for petitioner
who contends that to raise them in these proceedings which
are entirely new and distinct and completely independent
from the other is improper and unfair as they find no support
whatsoever in any evidence submitted by the parties in this
case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason,
counsel, contends, the lower court was justified in
disregarding them and in passing them sub silentio in its
decision.
A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence
which may justify the insinuation that petitioner had
deliberately intended to frustrate the probate of the 1939 will
of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently
unexpected testimony of Canuto Perez that he went out of
the room to answer an urgent call of nature when Artemio
Reyes was signing the will and the failure of petitioner later to
impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure
has been explained by petitioner when she informed the considering that in both the 1918 and 1939 wills she was in by
court that she was unable to impeach the character of her her husband as his universal heir. Nor can she be charged with
witness Canuto Perez because of her inability to find bad faith far having done so because of her desire to prevent
witnesses who may impeach him, and this explanation stands the intestacy of her husband. She cannot be blamed being
uncontradicted. Whether this explanation is satisfactory or zealous in protecting her interest.
not, it is not now, for us to determine. It is an incident that
comes within the province of the former case. The failure of The next contention of appellants refers to the revocatory
petitioner to present the testimony of Artemio Reyes at the clause contained in 1939 will of the deceased which was
hearing has also been explained, and it appears that denied probate. They contend that, notwithstanding the
petitioner has filed because his whereabouts could not be disallowance of said will, the revocatory clause is valid and
found. Whether this is true or not is also for this Court to still has the effect of nullifying the prior of 1918.
determine. It is likewise within the province and function of
the court in the former case. And the unfairness of this Counsel for petitioner meets this argument by invoking the
imputation becomes more glaring when we stock of the doctrine laid down in the case of Samson vs. Naval, (41 Phil.,
developments that had taken place in these proceedings 838). He contends that the facts involved in that case are on
which show in bold relief the true nature of the conduct, all fours with the facts of this case. Hence, the doctrine is that
behavior and character of the petitioner so bitterly assailed case is here controlling.
and held in disrepute by the oppositors.
There is merit in this contention. We have carefully read the
It should be recalled that the first petition for the probate of facts involved in the Samson case we are indeed impressed by
the will executed on June 20, 1939, was filed on February 7, their striking similarity with the facts of this case. We do not
1941, by the petitioner. There being no opposition, the will need to recite here what those facts are; it is enough to point
was probated. Subsequently, however, upon petition of the out that they contain many points and circumstances in
herein oppositors, the order of the court admitting said will to common. No reason, therefore, is seen by the doctrine laid
probate was set aside, over the vigorous opposition of the down in that case (which we quote hereunder) should not
herein petitioner, and the case was reopened. The reopening apply and control the present case.
was ordered because of the strong opposition of the
oppositors who contended that he will had not been executed
A subsequent will, containing a clause revoking a
as required by law. After the evidence of both parties had
previous will, having been disallowed, for the reason
been presented, the oppositors filed an extensive
that it was not executed in conformity with the
memorandum wherein they reiterated their view that the will
provisions of section 618 of the Code of Civil
should be denied probate. And on the strenght of this
Procedure as to the making of wills, cannot produce
opposition, the court disallowed the will.
the effect of annulling the previous will, inasmuch as
said revocatory clause is void. (41 Phil., 838.)
If petitioner then knew that the 1939 will was inherently
defective and would make the testamentary disposition in her
Apropos of this question, counsel for oppositors make the
favor invalid and ineffective, because it is a "disposicion
remark that, while they do not disagree with the soundness
captatoria", which knowledge she may easily acquire through
of the ruling laid down in the Samson case, there is reason to
consultation with a lawyer, there was no need her to go
abandon said ruling because it is archaic or antiquated and
through the order of filing the petition for the probate of the
runs counter to the modern trend prevailing in American
will. She could accomplish her desire by merely suppressing
jurisprudence. They maintain that said ruling is no longer
the will or tearing or destroying it, and then take steps leading
controlling but merely represents the point of view of the
to the probate of the will executed in 1918. But for her
minority and should, therefore, be abandoned, more so if we
conscience was clear and bade her to take the only proper
consider the fact that section 623 of our Code of Civil
step possible under the circumstances, which is to institute
Procedure, which governs the revocation of wills, is of
the necessary proceedings for the probate of the 1939 will.
American origin and as such should follow the prevailing
This she did and the will was admitted to probate. But then
trend of the majority view in the United States. A long line of
the unexpected happened. Over her vigorous opposition, the
authorities is cited in support of this contention. And these
herein appellants filed a petition for reopening, and over her
authorities hold the view, that "an express revocation is
vigorous objection, the same was granted and the case was
immediately effective upon the execution of the subsequent
reopened. Her motion for reconsideration was denied. Is it
will, and does not require that it first undergo the formality of
her fault that the case was reopened? Is it her fault that the
a probate proceeding". (p. 63, appellants' brief .
order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants
While they are many cases which uphold the view
not filed their opposition to the probate of the will and had
entertained by counsel for oppositors, and that view appears
they limited their objection to the intrinsic validity of said will,
to be in controlling the states where the decisions had been
their plan to defeat the will and secure the intestacy of the
promulgated, however, we are reluctant to fall in line with the
deceased would have perhaps been accomplished. But they
assertion that is now the prevailing view in the United States.
failed in their strategy. If said will was denied probate it is due
In the search we have made of American authorities on the
to their own effort. It is now unfair to impute bad faith
subject, we found ourselves in a pool of conflicting opinions
petitioner simply because she exerted every effort to protect
perhaps because of the peculiar provisions contained in the
her own interest and prevent the intestacy of the deceased to
statutes adopted by each State in the subject of revocation of
happen.
wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid
Having reached the foregoing conclusions, it is obvious that
down in the Samson case is still a good law. On page 328 of
the court did not commit the second and third errors imputed
the American Jurisprudence Vol. 57, which is a revision
to it by the counsel for appellants. Indeed, petitioner cannot
Published in 1948, we found the following passages which in
be considered guilty or estoppel which would prevent her
our opinion truly reflect the present trend of American
from seeking the probate of the 1918 will simply because of
jurisprudence on this matter affecting the revocation of wills:
her effort to obtain the allowance of the 1939 will has failed
 SEC. 471. Observance of Formalities in Execution of
Instrument. Ordinarily, statutes which permit the
revocation of a will by another writing provide that
to be effective as a revocation, the writing must be
executed with the same formalities which are
required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested
non testamentary writing is not effective to revoke a
prior will. It has been held that a writing fails as a
revoking instrument where it is not executed with
the formalities requisite for the execution of a will,
even though it is inscribed on the will itself, although
it may effect a revocation by cancellation or
obliteration of the words of the will. A testator
cannot reserve to himself the power to modify a will
by a written instrument subsequently prepared but
not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or
Ineffective Will or Codicil. A will which is invalid
because of the incapacity of the testator, or of undue
influence can have no effect whatever as a revoking
will. Moreover, a will is not revoked by the
unexecuted draft of a later one. Nor is a will revoked
by a defectively executed will or codicil, even though
the latter contains a clause expressly revoking the
former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a will,
for the simple reason that there is no revoking will.
Similarly where the statute provides that a will may
be revoked by a subsequent will or other writing
executed with the same formalities as are required in
the execution of wills, a defectively executed will
does not revoke a prior will, since it cannot be said
that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account
of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of
real estate made by a former will, even though it
may expressly purport to do so. The intent of the
testator to revoke is immaterial, if he has not
complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where
second will is invalid", among which a typical one is the
following:
It is universally agreed that where the second will is
invalid on account of not being executed in
accordance with the provisions of the statute, or
where the testator who has not sufficient mental
capacity to make a will or the will is procured
through undue influence, or the such, in other
words, where the second will is really no will, it does
not revoke the first will or affect it in any manner.
Mort vs. Baker University (193-5) 229 Mo. App., 632,
78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They
reflect the opinion that this ruling is sound and good and for
this reason, we see no justification for abondoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil
Procedure) provides that a will may be some will, codicil, or
other writing executed as proved in case of wills" but it
cannot be said that the 1939 will should be regarded, not as a
will within the meaning of said word, but as "other writing
executed as provided in the case of wills", simply because it
was denied probate. And even if it be regarded as any other
writing within the meaning of said clause, there is authority
for holding that unless said writing is admitted to probate, it
cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-
330).
But counsel for oppositors contemned that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked
by the testator himself. The oppositors contend that the
testator, after executing the 1939 will, and with full
knowledge of the recovatory clause contained said will,
himself deliberately destroyed the original of the 1918 will,
and for that reason the will submitted by petitioner for
probate in these proceedings is only a duplicate of said
original.
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 we have 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
was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) 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 herein petitioner, 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. It is possible that
because of the long lapse of twenty-one (21) years since the
first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the
testator deemed it wise to execute another will containing
exactly the same testamentary dispositions. Whatever may be
the conclusion we may draw from this chain of circumstances,
the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the
testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of
the second will, which revoked the first, could there be any
doubt, under this theory, that said earlier will was destroyed
by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of
the earlier will was but the necessary consequence of the
testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the principle
of "dependent relative revocation".
This doctrine is known as that of dependent relative
revocation, and is usually applied where the testator cancels
or destroys a will or executes 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 of effect for
same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where
a will was destroyed as a consequence of a mistake of law. . . .
(68 C.J.P. 799).

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 force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation.

The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent
to the non-fulfillment of a suspensive conditions, and
hence prevents the revocation of the original will.
But a mere intent to make at some time a will in the
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. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that 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
this principle is predicated is that the testator did not intend
to die intestate. And this intention is clearly manifest when he
executed two wills on two different occasion and instituted
his wife as his universal heir. There can therefore be no
mistake as to his intention of dying testate.

The remaining question to be determined refers to the

sufficiency of the evidence to prove the due execution of the
will.

The will in question was attested, as required by law, by three

witnesses, Lorenzo Morales, Rufino Enriquez, and Angel
Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under
our law and precedents, his testimony is sufficient to prove
the due execution of the will. However, petitioner presented
not only the testimony of Cuenca but placed on the witness
stand Juan Salcedo, the notary public who prepared and
notarized the will upon the express desire and instruction of
the testator, The testimony of these witnesses shows that the
will had been executed in the manner required by law. We
have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the
truth.

Wherefore, the order appealed from is hereby affirmed, with

costs against the appellants.1wphl.nt

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 pre-deceased 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.
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.

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.

J.L.T. AGRO, INC., represented by its Manager, JULIAN L.
TEVES, petitioner, vs. ANTONIO BALANSAG and
HILARIA CADAYDAY, respondents.
DECISION
TINGA, J.:
Once again, the Court is faced with the perennial conflict
of property claims between two sets of heirs, a conflict
ironically made grievous by the fact that the decedent in this
case had resorted to great lengths to allocate which
properties should go to which set of heirs.
This is a Rule 45 petition assailing the Decision[1] dated
30 September 1999 of the Court of Appeals which reversed
the Decision[2] dated 7 May 1993 of the Regional Trial Court
(RTC), Branch 45, of Bais City, Negros Oriental.
The factual antecedents follow.
Don Julian L. Teves (Don Julian) contracted two
marriages, first with Antonia Baena (Antonia), and after her
death, with Milagros Donio Teves (Milagros Donio). Don Julian
had two children with Antonia, namely: Josefa Teves Escao
(Josefa) and Emilio Teves (Emilio). He had also four (4)
children with Milagros Donio, namely: Maria Evelyn Donio
Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose
Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro
Reyes Teves (Pedro).[3]
The present controversy involves a parcel of land
covering nine hundred and fifty-four (954) square meters,
known as Lot No. 63 of the Bais Cadastre, which was originally
registered in the name of the conjugal partnership of Don
Julian and Antonia under Original Certificate of Title (OCT) No.
5203 of the Registry of Deeds of Bais City. When Antonia died,
the land was among the properties involved in an action for
partition and damages docketed as Civil Case No. 3443
entitled Josefa Teves Escao v. Julian Teves, Emilio B. Teves, et
al.[4] Milagros Donio, the second wife of Don Julian,
participated as an intervenor. Thereafter, the parties to the
case entered into a Compromise Agreement[5] which
embodied the partition of all the properties of Don Julian.
On the basis of the compromise agreement and
approving the same, the Court of First Instance (CFI) of
Negros Oriental, 12th Judicial District, rendered
[6]
a Decision dated 31 January 1964. The CFI decision declared
a tract of land known as Hacienda Medalla Milagrosa as
property owned in common by Don Julian and his two (2)
children of the first marriage. The property was to remain
undivided during the lifetime of Don Julian. [7] Josefa and
Emilio likewise were given other properties at Bais, including
the electric plant, the movie property, the commercial areas,
and the house where Don Julian was living. The remainder of
the properties was retained by Don Julian, including Lot No.
63.
Paragraph 13 of the Compromise Agreement, at the
heart of the present dispute, lays down the effect of the
eventual death of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the
properties hereinafter adjudicated to Josefa Teves Escao and
Emilio B. Teves, (excluding the properties comprised as
Hacienda Medalla Milagrosa together with all its accessories
and accessions) shall be understood as including not only
their one-half share which they inherited from their mother
but also the legitimes and other successional rights which
would correspond to them of the other half belonging to their
father, Julian L. Teves. In other words, the properties now
selected and adjudicated to Julian L. Teves (not including his
share in the Hacienda Medalla Milagrosa) shall exclusively
be adjudicated to the wife in second marriage of Julian L.
Teves and his four minor children, namely, Milagros Donio
Teves, his two acknowledged natural children Milagros Reyes
Teves and Pedro Reyes Teves and his two legitimated children
Maria Evelyn Donio Teves and Jose Catalino Donio Teves.
(Emphasis supplied)
On 16 November 1972, Don Julian, Emilio and Josefa
executed a Deed of Assignment of Assets with Assumption of
Liabilities[8] in favor of J.L.T. Agro, Inc. (petitioner). Less than a
year later, Don Julian, Josefa and Emilio also executed an
instrument entitled Supplemental to the Deed of Assignment
of Assets with the Assumption of Liabilities (Supplemental
Deed)[9] dated 31 July 1973. This instrument which constitutes
a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor
of petitioner.[10] On 14 April 1974, Don Julian died intestate.
On the strength of the Supplemental Deed in its favor,
petitioner sought the registration of the subject lot in its
name. A court, so it appeared, issued an order [11] cancelling
OCT No. 5203 in the name of spouses Don Julian and Antonia
on 12 November 1979, and on the same date TCT No. T-375
was issued in the name of petitioner. [12] Since then, petitioner
has been paying taxes assessed on the subject lot.[13]
Meanwhile, Milagros Donio and her children had
immediately taken possession over the subject lot after the
execution of the Compromise Agreement. In 1974, they
entered into a yearly lease agreement with spouses Antonio
Balansag and Hilaria Cadayday, respondents herein. [14] On Lot
No. 63, respondents temporarily established their home and
constructed a lumber yard. Subsequently, Milagros Donio and
her children executed a Deed of Extrajudicial Partition of Real
Estate[15] dated 18 March 1980. In the deed of partition, Lot
No. 63 was allotted to Milagros Donio and her two (2)
children, Maria Evelyn and Jose Catalino. Unaware that the
subject lot was already registered in the name of petitioner in
1979, respondents bought Lot No. 63 from Milagros Donio as
evidenced by the Deed of Absolute Sale of Real
Estate[16] dated 9 November 1983.
At the Register of Deeds while trying to register the deed
of absolute sale, respondents discovered that the lot was
already titled in the name of petitioner. Thus, they failed to
register the deed.[17]
Respondents, as vendees of Lot No. 63, filed a complaint
before the RTC Branch 45 of Bais City, seeking the declaration
of nullity and cancellation of TCT No. T-375 in the name of
petitioner and the transfer of the title to Lot No. 63 in their
names, plus damages.[18]
After hearing, the trial court dismissed the complaint
filed by respondents. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, by preponderance of
evidence, this Court finds judgment in favor of the defendant
and against the plaintiff, and thus hereby orders:
(1) That complaint be dismissed;
(2) That plaintiffs vacate the subject land,
particularly identified as Lot No. 63
registered under Transfer Certificate of Title
No. T-375;
(3) That plaintiffs pay costs.
Finding no basis on the counterclaim by defendant, the same
is hereby ordered dismissed.[19]
The trial court ruled that the resolution of the case
specifically hinged on the interpretation of paragraph 13 of
the Compromise Agreement.[20] It added that the direct
adjudication of the properties listed in the Compromise
Agreement was only in favor of Don Julian and his two
children by the first marriage, Josefa and Emilio. [21] Paragraph
13 served only as an amplification of the terms of the
adjudication in favor of Don Julian and his two children by the
first marriage.
According to the trial court, the properties adjudicated
in favor of Josefa and Emilio comprised their shares in the
estate of their deceased mother Antonia, as well as their
potential share in the estate of Don Julian upon the latters
death. Thus, upon Don Julians death, Josefa and Emilio could
not claim any share in his estate, except their proper share in
the Hacienda Medalla Milagrosa which was adjudicated in
favor of Don Julian in the Compromise Agreement. As such,
the properties adjudicated in favor of Don Julian, except
Hacienda Medalla Milagrosa, were free from the forced
legitimary rights of Josefa and Emilio, and Don Julian was
under no impediment to allocate the subject lot, among his
other properties, to Milagros Donio and her four (4) children.
[22]
The trial court further stressed that with the use of the
words shall be, the adjudication in favor of Milagros Donio
and her four (4) children was not final and operative, as the
lot was still subject to future disposition by Don Julian during
his lifetime.[23] It cited paragraph 14[24] of the Compromise
Agreement in support of his conclusion.[25] With Lot No. 63
being the conjugal property of Don Julian and Antonia, the
trial court also declared that Milagros Donio and her children
had no hereditary rights thereto except as to the conjugal
share of Don Julian, which they could claim only upon the
death of the latter.[26]
The trial court ruled that at the time of Don Julians
death on 14 April 1974, Lot No. 63 was no longer a part of his
estate since he had earlier assigned it to petitioner on 31 July
1973. Consequently, the lot could not be a proper subject of
extrajudicial partition by Milagros Donio and her children, and
not being the owners they could not have sold it. Had
respondents exercised prudence before buying the subject lot
by investigating the registration of the same with the Registry
of Deeds, they would have discovered that five (5) years
earlier, OCT No. 5203 had already been cancelled and
replaced by TCT No. T-375 in the name of petitioner, the trial
court added.[27]
The Court of Appeals, however, reversed the trial courts
decision. The decretal part of the appellate decision reads:
WHEREFORE, premises considered, the decision appealed
from is hereby REVERSED and SET ASIDE and a new one is
entered declaring the Transfer Certificate of Title No. T-375
registered in the name of J.L.T. Agro, Inc. as null and void.
With costs against defendant J.L.T. Agro, Inc. represented by
its Manager, Julian L. Teves.
SO ORDERED.[28]
Per the appellate court, the Compromise
Agreement incorporated in CFI decision dated 31 January
1964, particularly paragraph 13 thereof, determined,
adjudicated and reserved to Don Julians two sets of heirs
their future legitimes in his estate except as regards his (Don
Julians) share in Hacienda Medalla Milagrosa.[29] The two sets
of heirs acquired full ownership and possession of the
properties respectively adjudicated to them in the CFI
decision and Don Julian himself could no longer dispose of
the same, including Lot No. 63. The disposition in the CFI
decision constitutes res judicata.[30] Don Julian could have
disposed of only his conjugal share in the Hacienda Medalla
Milagrosa.[31]
The appellate court likewise emphasized that nobody in
his right judgment would preterit his legal heirs by simply
executing a document like the Supplemental Deed which
practically covers all properties which Don Julian had reserved
in favor of his heirs from the second marriage. It also found
out that the blanks reserved for the Book No. and Page No. at
the upper right corner of TCT No. T-375, to identify the exact
location where the said title was registered or transferred,
were not filled up, thereby indicating that the TCT is spurious
and of dubious origin.[32]
Aggrieved by the appellate courts decision, petitioner
elevated it to this Court via a petition for review on certiorari,
raising pure questions of law.
Before this Court, petitioner assigns as errors the
following rulings of the appellate court, to wit: (a) that future
legitime can be determined, adjudicated and reserved prior to
the death of Don Julian; (b) that Don Julian had no right to
dispose of or assign Lot No. 63 to petitioner because he
reserved the same for his heirs from the second marriage
pursuant to the Compromise Agreement; (c) that
the Supplemental Deed was tantamount to a preterition of his
heirs from the second marriage; and (d) that TCT No. T-375 in
the name of petitioner is spurious for not containing entries
on the Book No. and Page No.[33]
While most of petitioners legal arguments have merit,
the application of the appropriate provisions of law to the
facts borne out by the evidence on record nonetheless
warrants the affirmance of the result reached by the Court of
Appeals in favor of respondents.
Being the key adjudicative provision, paragraph 13 of
the Compromise Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the
properties herein adjudicated to Josefa Teves Escao and
Emilio B. Teves, (excluding the properties comprised as
Hacienda Medalla Milagrosa together with all its accessories
and accessions) shall be understood as including not only
their one-half share which they inherited from their mother
but also the legitimes and other successional rights which
would correspond to them of the other half belonging to their
father, Julian L.Teves. In other words, the properties now
selected and adjudicated to Julian L. Teves (not including his
share in the Hacienda Medalla Milagrosa) shall exclusively
be adjudicated to the wife in second marriage of Julian L.
Teves and his four minor children, namely, Milagros Donio
Teves, his two acknowledged natural children Milagros
Reyes Teves and Pedro Reyes Teves and his two legitimated
children Maria Evelyn Donio Teves and Jose Catalino Donio
Teves. (Emphasis supplied)
With the quoted paragraph as basis, the Court of
Appeals ruled that the adjudication in favor of the heirs of
Don Julian from the second marriage became automatically
operative upon the approval of the Compromise Agreement,
thereby vesting on them the right to validly dispose of Lot No.
63 in favor of respondents.
Petitioner argues that the appellate court erred in
holding that future legitime can be determined, adjudicated
and reserved prior to the death of Don Julian. The Court
agrees. Our declaration in Blas v. Santos[34] is relevant, where
we defined future inheritance as any property or right not in
existence or capable of determination at the time of the
contract, that a person may in the future acquire by
succession. Article 1347 of the New Civil Code explicitly
provides:
ART. 1347. All things which are not outside the commerce of
men, including future things, may be the object of a contract.
All rights which are not intransmissible may also be the object
of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the
object of a contract.
Well-entrenched is the rule that all things, even future
ones, which are not outside the commerce of man may be the
object of a contract. The exception is that no contract may be
entered into with respect to future inheritance, and the
exception to the exception is the partition inter vivos referred
to in Article 1080.[35]
For the inheritance to be considered future, the
succession must not have been opened at the time of the
contract.[36] A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of
Article 1347, where the following requisites concur:
(1) That the succession has not yet been opened;
(2) That the object of the contract forms part of
the inheritance; and
(3) That the promissor has, with respect to the object, an
expectancy of a right which is purely hereditary in nature. [37]
The first paragraph of Article 1080, which provides the
exception to the exception and therefore aligns with the
general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by
an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
....
In interpreting this provision, Justice Edgardo Paras
advanced the opinion that if the partition is made by an
act inter vivos, no formalities are prescribed by the Article.
[38]
The partition will of course be effective only after death. It
does not necessarily require the formalities of a will for after
all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be
required since donation will not be the mode of acquiring the
ownership here after death; since no will has been made it
follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical
determination of the part to be given to each heir. [39]
The historical antecedent of Article 1080 of the New
Civil Code is Article 1056[40] of the old Civil Code. The only
change in the provision is that Article 1080 now permits
any person (not a testator, as under the old law) to partition
his estate by act inter vivos. This was intended to abrogate the
then prevailing doctrine that for a testator to partition his
estate by an act inter vivos, he must first make a will with all
the formalities provided by law.[41]
Article 1056 of the old Civil Code (now Article 1080)
authorizes a testator to partition inter vivos his property, and
distribute them among his heirs, and this partition is neither a
donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by
the causante during his lifetime, and does not operate as a
conveyance of title until his death. It derives its binding force
on the heirs from the respect due to the will of the owner of
the property, limited only by his creditors and the intangibility
of the legitime of the forced heirs.[42]
The partition inter vivos of the properties of Don Julian is
undoubtedly valid pursuant to Article 1347. However,
considering that it would become legally operative only upon
the death of Don Julian, the right of his heirs from the second
marriage to the properties adjudicated to him under the
compromise agreement was but a mere expectancy. It was a
bare hope of succession to the property of their father. Being
the prospect of a future acquisition, the interest by its nature
was inchoate. It had no attribute of property, and the interest
to which it related was at the time nonexistent and might
never exist.[43]
Evidently, at the time of the execution of the deed of
assignment covering Lot No. 63 in favor of petitioner, Don
Julian remained the owner of the property since ownership
over the subject lot would only pass to his heirs from the
second marriage at the time of his death. Thus, as the owner
of the subject lot, Don Julian retained the absolute right to
dispose of it during his lifetime. His right cannot be
challenged by Milagros Donio and her children on the ground
that it had already been adjudicated to them by virtue of the
compromise agreement.
Emerging as the crucial question in this case is whether
Don Julian had validly transferred ownership of the subject lot
during his lifetime. The lower court ruled that he had done so
through the Supplemental Deed. The appellate court
disagreed, holding that the Supplemental Deed is not valid,
containing as it does a prohibited preterition of Don Julians
heirs from the second marriage. Petitioner contends that the
ruling of the Court of Appeals is erroneous. The contention is
well-founded.
Article 854 provides that 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 devises and legacies shall be valid insofar as they
are not inofficious. Manresa defines preterition as the
omission of the heir in the will, either by not naming him at
all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor
assigning to him some part of the properties. [44] It is the total
omission of a compulsory heir in the direct line from
inheritance.[45] It consists in the silence of the testator with
regard to a compulsory heir, omitting him in the testament,
either by not mentioning him at all, or by not giving him
anything in the hereditary property but without expressly
disinheriting him, even if he is mentioned in the will in the
latter case.[46] But there is no preterition where the testator
allotted to a descendant a share less than the legitime, since
there was no total omission of a forced heir. [47]
In the case at bar, Don Julian did not execute a will since
what he resorted to was a partition inter vivos of his
properties, as evidenced by the court approved Compromise
Agreement. Thus, it is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in the absence of a
will depriving a legal heir of his legitime. Besides, there are
other properties which the heirs from the second marriage
could inherit from Don Julian upon his death. A couple of
provisions in the Compromise Agreement are indicative of
Don Julians desire along this line. [48] Hence, the total omission
from inheritance of Don Julians heirs from the second
marriage, a requirement for preterition to exist, is hardly
imaginable as it is unfounded.
Despite the debunking of respondents argument on
preterition, still the petition would ultimately rise or fall on
whether there was a valid transfer effected by Don Julian to
petitioner. Notably, Don Julian was also the president and
director of petitioner, and his daughter from the first
marriage, Josefa, was the treasurer thereof. There is of course
no legal prohibition against such a transfer to a family
corporation. Yet close scrutiny is in order, especially
considering that such transfer would remove Lot No. 63 from
the estate from which Milagros and her children could inherit.
Both the alleged transfer deed and the title which necessarily
must have emanated from it have to be subjected to incisive
and detailed examination.
Well-settled, of course, is the rule that a certificate of
title serves as evidence of an indefeasible title to the property
in favor of the person whose name appears therein. [49] A
certificate of title accumulates in one document a precise and
correct statement of the exact status of the fee held by its
owner. The certificate, in the absence of fraud, is the evidence
of title and shows exactly the real interest of its owner. [50]
To successfully assail the juristic value of what a Torrens
title establishes, a sufficient and convincing quantum of
evidence on the defect of the title must be adduced to
overcome the predisposition in law in favor of a holder of a
Torrens title. Thus, contrary to the appellate courts ruling, the
appearance of a mere thumbmark of Don Julian instead of his
signature in the Supplemental Deed would not affect the
validity of petitioners title for this Court has ruled that a
thumbmark is a recognized mode of signature.[51]
The truth, however, is that the replacement of OCT No.
5203 in the name of Julian by T.C.T. No. T-375 is marred by a
grave irregularity which is also an illegality, as it contravenes
the orthodox, conventional and normal process established
by law. And, worse still, the illegality is reflected on the face of
both titles. Where, as in this case, the transferee relies on a
voluntary instrument to secure the issuance of a new title in
his name such instrument has to be presented to the Registry
of Deeds. This is evident from Sections 53 and 57 of
Presidential Decree (P.D.) No. 1529 or the Property
Registration Decree. The sections read, thus:
SEC. 53. Presentation of owners duplicate upon entry of new
certificate. No voluntary instrument shall be registered by the
Register of Deeds unless the owners duplicate certificate
is presented with such instrument, except in cases expressly
provided for in this Decree or upon order of the court, for
cause shown. (Emphasis supplied)
....
SEC. 57. Procedure in registration of conveyances. An owner
desiring to convey his registered land in fee simple shall
execute and register a deed of conveyance in a form
sufficient in law. The Register of Deeds shall thereafter make
out in the registration book a new certificate of title to the
grantee and shall prepare and deliver to him an owners
duplicate certificate. The Register of Deeds shall note upon
the original and duplicate certificate the date of transfer, the
volume and page of the registration book in which the new
certificate is registered and a reference by number to the last
preceding certificate. The original and the owners duplicate of
the grantors certificate shall be stamped cancelled. The deed
of conveyance shall be filed and endorsed with the number
and the place of registration of the certificate of title of the
land conveyed. (Emphasis supplied)
As petitioner bases its right to the subject lot on
the Supplemental Deed, it should have presented it to the
Register of Deeds to secure the transfer of the title in its
name. Apparently, it had not done so. There is nothing on
OCT No. 5203 or on the succeeding TCT No. T-375 either
which shows that it had presented the Supplemental Deed. In
fact, there is absolutely no mention of a reference to said
document in the original and transfer certificates of title. It is
in this regard that the finding of the Court of Appeals
concerning the absence of entries on the blanks intended for
the Book No. and Page No. gains significant relevance. Indeed,
this aspect fortifies the conclusion that the cancellation of
OCT No. 5203 and the consequent issuance of TCT No. T-375
in its place are not predicated on a valid transaction.
What appears instead on OCT No. 5203 is the following
pertinent entry:
Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO,
INC.
CONDITIONS: Lost owners duplicate is hereby cancelled, and
null and void and a new Certificate of Title No. 375 is issued
per Order of the Court of First Instance on file in this office.
Date of Instrument: November 12, 1979
Date of Inscription: Nov. 12, 1979 4:00 P.M.
(SGD) MANUEL C.
MONTESA
Acting Deputy Register of
Deeds II
(Emphasis supplied)[52]
What the entry indicates is that the owners duplicate of
OCT No. 5203 was lost, a petition for the reconstitution of the
said owners duplicate was filed in court, and the court issued
an order for the reconstitution of the owners duplicate and its
replacement with a new one. But if the entry is to be
believed, the court concerned (CFI, according to the entry)
issued an order for the issuance of a new title which is TCT
No. T-375 although the original of OCT No. 5203 on file with
the Registry of Deeds had not been lost.
Going by the legal, accepted and normal process, the
reconstitution court may order the reconstitution and
replacement of the lost title only, nothing else. Since what
was lost is the owners copy of OCT No. 5203, only that
owners copy could be ordered replaced. Thus, the Register of
Deeds exceeded his authority in issuing not just a
reconstituted owners copy of the original certificate of title
but a new transfer certificate of title in place of the original
certificate of title. But if the court order, as the entry
intimates, directed the issuance of a new transfer certificate
of titleeven designating the very number of the new transfer
certificate of title itselfthe order would be patently unlawful.
A court cannot legally order the cancellation and replacement
of the original of the O.C.T. which has not been lost, [53] as the
petition for reconstitution is premised on the loss merely of
the owners duplicate of the OCT
Apparently, petitioner had resorted to the court order as
a convenient contrivance to effect the transfer of title to the
subject lot in its name, instead of the Supplemental
Deed which should be its proper course of action. It was so
constrained to do because the Supplemental Deed does not
constitute a deed of conveyance of the registered land in fee
simple in a form sufficient in law, as required by Section 57 of
P.D. No. 1529.
A plain reading of the pertinent provisions of
the Supplemental Deed discloses that the assignment is not
supported by any consideration. The provision reads:
....
WHEREAS, in the Deed of Assignment of Assets with the
Assumption of Liabilities executed by Julian L. Teves, Emilio B.
Teves and Josefa T. Escao at Dumaguete City on 16th day of
November 1972 and ratified in the City of Dumaguete before
Notary Public Lenin Victoriano, and entered in the latters
notarial register as Doc. No. 367; Page No. 17; Book No. V;
series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T.
Escao, transferred, conveyed and assigned unto J.L.T. AGRO,
INC., all its assets and liabilities as reflected in the Balance
Sheet of the former as of December 31, 1971.
WHEREAS, on the compromise agreement, as mentioned in
the Decision made in the Court of First Instance of Negros
Oriental, 12th Judicial District Branch II, on Dec. 31, 1964
pertaining to Civil Case No. 3443 the following properties
were adjudicated to Don Julian L. Teves. We quote.
From the properties at Bais
Adjudicated to Don Julian L.Teves
....
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203,
together with all improvements. Assessed value - P2,720.00
....
WHEREAS, this Deed of Assignment is executed by the parties
herein in order to effect the registration of the transfer of the
above corporation.
NOW, THEREFORE, for and in consideration of the above
premises the ASSIGNOR hereby transfers, conveys, and
assigns unto J.L.T. AGRO, INC., the above described parcel of
land[s] with a fair market value of EIGHTY-FOUR THOUSAND
PESOS (P84,000.00), Philippine Currency, and which transfer,
conveyance and assignment shall become absolute upon
signing.[54] (Emphasis supplied)
The amount of P84,000.00 adverted to in the dispositive
portion of the instrument does not represent the
consideration for the assignment made by Don Julian. Rather,
it is a mere statement of the fair market value of all the
nineteen (19) properties enumerated in the instrument, of
which Lot No. 63 is just one, that were transferred by Don
Julian in favor of petitioner. Consequently, the testimony [55] of
petitioners accountant that the assignment is supported by
consideration cannot prevail over the clear provision to the
contrary in the Supplemental Deed.
The Court of Appeals, on the other hand, apparently
considered the 1948 mortgage which is annotated on the
back of the TCT No. T-375 as the consideration for the
assignment.[56]However, the said annotation[57] shows that the
mortgage was actually executed in favor of Rehabilitation
Finance Corporation, not of petitioner. [58] Clearly, said
mortgage, executed as it was in favor of the Rehabilitation
Finance Corporation and there being no showing that
petitioner itself paid off the mortgate obligation, could not
have been the consideration for the assignment to petitioner.
Article 1318 of the New Civil Code enumerates the
requisites of a valid contract, namely: (1) consent of the
contracting parties; (2) object certain which is the subject
matter of the contract; and (3) Cause of the obligation which
is established.
Thus, Article 1352 declares that contracts without cause,
or with unlawful cause produce no effect whatsoever. Those
contracts lack an essential element and they are not only
voidable but void or inexistent pursuant to Article 1409,
paragraph (2).[59] The absence of the usual recital of
consideration in a transaction which normally should be
supported by a consideration such as the assignment made by
Don Julian of all nineteen (19) lots he still had at the time,
coupled with the fact that the assignee is a corporation of
which Don Julian himself was also the President and Director,
forecloses the application of the presumption of existence of
consideration established by law.[60]
Neither could the Supplemental Deed validly operate as
a donation. Article 749 of the New Civil Code is clear on the
point, thus:
Art. 749. In order that the donation of the immovable may be
valid, it must be made in a public document, specifying
therein the property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same deed of donation
or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor
shall be notified thereof in an authentic form, and this step
shall be noted in both instruments.
In Sumipat, et al v. Banga, et al.,[61] this Court declared
that title to immovable property does not pass from the
donor to the donee by virtue of a deed of donation until and
unless it has been accepted in a public instrument and the
donor duly notified thereof. The acceptance may be made in
the very same instrument of donation. If the acceptance does
not appear in the same document, it must be made in
another. Where the deed of donation fails to show the
acceptance, or where the formal notice of the acceptance,
made in a separate instrument, is either not given to the
donor or else not noted in the deed of donation and in the
separate acceptance, the donation is null and void.
In the case at bar, although
the Supplemental Deed appears in a public document,[62] the
absence of acceptance by the donee in the same deed or
even in a separate document is a glaring violation of the
requirement.
One final note. From the substantive and procedural
standpoints, the cardinal objectives to write finis to a
protracted litigation and avoid multiplicity of suits are worth
pursuing at all times. [63] Thus, this Court has ruled that
appellate courts have ample authority to rule on specific
matters not assigned as errors or otherwise not raised in an
appeal, if these are indispensable or necessary to the just
resolution of the pleaded issues. [64] Specifically, matters not
assigned as errors on appeal but consideration of which are
necessary in arriving at a just decision and complete
resolution of the case, or to serve the interest of justice or to
avoid dispensing piecemeal justice.[65]
In the instant case, the correct characterization of
the Supplemental Deed, i.e., whether it is valid or void, is
unmistakably determinative of the underlying controversy. In
other words, the issue of validity or nullity of the instrument
which is at the core of the controversy is interwoven with the
issues adopted by the parties and the rulings of the trial court
and the appellate court.[66] Thus, this Court is also resolute in
striking down the alleged deed in this case, especially as it
appears on its face to be a blatant nullity.
WHEREFORE, foregoing premises considered,
the Decision dated 30 September 1999 of the Court of
Appeals is hereby AFFIRMED. Costs against petitioner J.L.T.
Agro, Inc.
SO ORDERED.

G.R. No. L-16763 December 22, 1921
PASCUAL COSO, petitioner-appellant,
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.
Eduardo Gutierrez Repide & Felix Socias for appellant.
Jose Varela Calderon & Benito Jimenez Zoboli for appellees.
OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance
of Manila setting aside a will on the ground of undue
influence alleged to have been exerted over the mind of a
testator by one Rosario Lopez. The will gives the tercio de
libre disposicion to an illegitimate son had by the testator with
said Rosario Lopez, and also provides for the payment to her
of nineteen hundred Spanish duros by way the
reimbursement for expenses incurred by her in taking care of
the testator in Barcelona during the years 1909 to 1916, when
he is alleged to have suffered from a severe illness.
The evidence shows that the testator, a married man and
resident of the Philippine Islands, became acquainted with
Rosario Lopez in Spain in 1898 and that he had illicit returns
with her for many years thereafter. After his return to the
Philippines she followed him, arriving in Manila in February,
1918, and remained in close communication with him until his
death in February, 1919. There is no doubt that she exercised
some influence over him and the only question for our
determination is whether this influence was of such a
character as to vitiate the will.
The English and American rule in regard to undue influence is
thus stated in 40 Cyc., 1144-1149.
Mere general or reasonable influence over a testator
is not sufficient to invalidate a will; to have that
effect the influence must be "undue." The rule as to
what constitutes "undue influence" has been
variously stated, but the substance of the different
statements is that, to be sufficient to avoid a will, the
influence exerted must be of a kind that so
overpowers and subjugates the mind of the testator
as to destroy his free agency and make his express
the will of another, rather than his own.1awphil.net
. . . such influence must be actually exerted on the
mind of the testator in regard to the execution of the
will in question, either at time of the execution of
the will, or so near thereto as to be still operative,
with the object of procuring a will in favor of
particular parties, and it must result in the making of
testamentary dispositions which the testator would
not otherwise have made. . . .
. . . and while the same amount of influence may
become "undue" when exercised by one occupying
an improper and adulterous relation to testator, the
mere fact that some influence is exercised by a
person sustaining that relation does not invalidate a
will, unless it is further shown that the influence
destroys the testator's free agency.
The burden is upon the parties challenging the will to show
that undue influence, in the sense above expressed, existed at
the time of its execution and we do not think that this burden
has been carried in the present case. While it is shown that
the testator entertained strong affections for Rosario Lopez, it
does not appear that her influence so overpowered and
subjugated his mind as to "destroy his free agency and make
him express the will of another rather than his own." He was
an intelligent man, a lawyer by profession, appears to have
known his own mind, and may well have been actuated only
by a legitimate sense of duty in making provisions for the
welfare of his illegitimate son and by a proper feeling of
gratitude in repaying Rosario Lopez for the sacrifices she had
made for him. Mere affection, even if illegitimate, is not
undue influence and does not invalidate a will. No imposition
or fraud has been shown in the present case.
Influence gained by kindness and affection will not
be regarded as `undue,' if no imposition or fraud be
practiced, even though it induces the testator to
make an unequal and unjust disposition of his
property in favor of those who have contributed to
his comfort and ministered to his wants, if such
disposition is voluntarily made. (Mackall vs. Mackall,
135 U. S., 1677.)
It may be further observed that under the Civil Law the right
of a person with legal heirs to dispose of his property by will is
limited to only a portion of his estate, and that under the law
in force in these Islands before the enactment of the Code of
Civil Procedure, the only outside influences affecting the
validity of a will were duress, deceit, and fraud. The present
doctrine of undue influence originated in a legal system
where the right of the testator to dispose of his property by
will was nearly unlimited. Manifestly, greater safeguards in
regard to execution of wills may be warranted when the right
to so dispose of property is unlimited than when it is
restricted to the extent it is in this jurisdiction. There is,
therefore, certainly no reason for giving the doctrine of undue
influence a wider scope here than it enjoys in the United
States.
For the reasons stated, the decision of the lower court
disallowing the will of Federico Gimenez Zoboli is hereby
reversed and it is ordered that the will be admitted to
probate. No costs will be allowed. So ordered.

G.R. No. L-18753 March 26, 1965
VICENTE B. TEOTICO, petitioner-appellant,
vs.
ANA DEL VAL, ETC., oppositor-appellant.
Antonio Gonzales for petitioner-appellant.
J.C. Zulueta, G. D. David and N. J. Quisumbing for oppositor-
appellant.
BAUTISTA ANGELO, J.:
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14,
1955 in the City of Manila leaving properties worth
P600,000.00. She left a will written in Spanish which she
executed at her residence at No. 2 Legarda St., Quiapo,
Manila. She affixed her signature at the bottom of the will and
on the left margin of each and every page thereof in the
presence of Pilar Borja, Pilar C. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the
attestation clause and on the left margin of each and every
page of the will in the presence of the testatrix and of each
other. Said will was acknowledged before Notary Public
Niceforo S. Agaton by the testatrix and her witnesses.
In said will the testatrix made the following preliminary
statement: that she was possessed of the full use of her
mental faculties; that she was free from illegal pressure or
influence of any kind from the beneficiaries of the will and
from any influence of fear or threat; that she freely and
spontaneously executed said will and that she had neither
ascendants nor descendants of any kind such that she could
freely dispose of all her estate.
Among the many legacies and devises made in the will was
one of P20,000.00 to Rene A. Teotico, married to the
testatrix's niece named Josefina Mortera. To said spouses the
testatrix left the usufruct of her interest in the Calvo building,
while the naked ownership thereof she left in equal parts to
her grandchildren who are the legitimate children of said
spouses. The testatrix also instituted Josefina Mortera as her
sole and universal heir to all the remainder of her properties
not otherwise disposed of in the will.
On July 17, 1955, Vicente B. Teotico filed a petition for the
probate of the will before the Court of First Instance of Manila
which was set for hearing on September 3, 1955 after the
requisite publication and service to all parties concerned.
Ana del Val Chan, claiming to be an adopted child of Francisca
Mortera, a deceased sister of the testatrix, as well as an
acknowledged natural child of Jose Mortera, a deceased
brother of the same testatrix, filed on September 2, 1955 an
opposition to the probate of the will alleging the following
grounds: (1) said will was not executed as required by law; (2)
the testatrix was physically and mentally incapable to execute
the will at the time of its execution; and (3) the will was
executed under duress, threat or influence of fear.
Vicente B. Teotico, filed a motion to dismiss the opposition
alleging that the oppositor had no legal personality to
intervene. The probate court, after due hearing, allowed the
oppositor to intervene as an adopted child of Francisca
Mortera, and on June 17, 1959, the oppositor amended her
opposition by alleging, the additional ground that the will is
inoperative as to the share of Dr. Rene Teotico because the
latter was the physician who took care of the testatrix during
her last illness.
After the parties had presented their evidence, the probate
court rendered its decision on November 10, 1960, admitting
the will to probate but declaring the disposition made in favor
of Dr. Rene Teotico void with the statement that the portion
to be vacated by the annulment should pass to the testatrix's
heirs by way of intestate succession.
Petitioner Teotico, together with the universal heir Josefina
Mortera, filed a motion for reconsideration of that part of the
decision which declares the portion of the estate to be
vacated by the nullity of the legacy made to Dr. Rene Teotico
as passing to the legal heirs, while the oppositor filed also a
motion for reconsideration of the portion of the judgment
which decrees the probate of the will. On his part, Dr. Rene
Teotico requested leave to intervene and to file a motion for
reconsideration with regard to that portion of the decision
which nullified the legacy made in his favor.
The motions for reconsideration above adverted to having
been denied, both petitioner and oppositor appealed from
the decision, the former from that portion which nullifies the
legacy in favor of Dr. Rene Teotico and declares the vacated
portion as subject of succession in favor of the legal heirs, and
the latter from that portion which admits the will to probate.
And in this instance both petitioner and oppositor assign
several errors which, stripped of non-essentials, may be
boiled down to the following: (1) Has oppositor Ana del Val
Chan the right to intervene in this proceeding?; (2) Has the
will in question been duly admitted to probate?; (3) Did the
probate court commit an error in passing on the intrinsic
validity of the provisions of the will and in determining who
should inherit the portion to be vacated by the nullification of
the legacy made in favor of Dr. Rene Teotico?
These issues will be discussed separately.
1. It is a well-settled rule that in order that a person may be
allowed to intervene in a probate proceeding he must have an
interest in 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
(Ngo The Hua v. Chung Kiat Hua, et al., L-17091, September
30, 1963); and an interested party has been defined as one
who would be benefited by the estate such as an heir or one
who has a claim against the estate like a creditor (Idem). On
the other hand, in Saguinsin v. Lindayag, et al., L-17750,
December 17, 1962, this Court said:
According to Section 2, Rule 80 of the Rules of Court,
a petition for letters of administration must be filed
by an "interested person." An interested party has
been defined in this connection as one who would
be benefited by the estate, such as an heir, or one
who has a claim against the estate, such as a creditor
(Intestate Estate of Julio Magbanwa 40 O.G. 1171).
And it is well settled in this jurisdiction that in civil
actions as well as special proceedings, the interest
required in order that a person may be a party
thereto must be material and direct, and not merely
indirect or contingent (Trillana vs. Crisostomo, G.R.
No. L-3370, August 22, 1951; Rapinosa vs. Barrion,
70 Phil. 311).
The question now may be asked: Has oppositor any interest in
any of the provisions of the will, and, in the negative, would
she acquire any right to the estate in the event that the will is
denied probate?
Under the terms of the will, oppositor has no right to
intervene because she has no interest in the estate either as
heir, executor, or administrator, nor does she have any claim
to any property affected by the will, because it nowhere
appears therein any provision designating her as heir, legatee
or devisee of any portion of the estate. She has also no
interest in the will either as administratrix or executrix.
Neither has she any claim against any portion of the estate
because she is not a co-owner thereof, and while she
previously had an interest in the Calvo building located in
Escolta, she had already disposed of it long before the
execution of the will.1wph1.t
In the supposition that, the will is denied probate, would the
oppositor acquire any interest in any portion of the estate left
by the testatrix? She would acquire such right only if she were
a legal heir of the deceased, but she is not under our Civil
Code. It is true that oppositor claims to be an acknowledged
natural child of Jose Mortera, a deceased brother of the
deceased, and also an adopted daughter of Francisca
Mortera, a deceased sister of the testatrix, but such claim
cannot give her any comfort for, even if it be true, the law
does not give her any right to succeed to the estate of the
deceased sister of both Jose Mortera and Francisca Mortera.
And this is so because being an illegitimate child she is
prohibited by law from succeeding to the legitimate relatives
of her natural father. Thus, Article 992 of our Civil Code
provides: "An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; ... ." And the philosophy behind this
provision is well expressed in Grey v. Fabie, 68 Phil. 128, as
follows:
Between the natural child and the legitimate
relatives of the father or mother who acknowledged
it, the Code denies any right of succession. They
cannot be called relatives and they have no right to
inherit. Of course, there is a blood tie, but the law
does not recognize it. On this, article 943 is based
upon the reality of the facts and upon the
presumption will of the interested parties; the
natural child is disgracefully looked down upon by
the legitimate family; the legitimate family is, in turn,
hated by the natural child; the latter considers the
privileged condition of the former and the resources
of which it is thereby deprived; the former, in turn,
sees in the natural child nothing but the product of
sin, a palpable evidence of a blemish upon the
family. Every relation is ordinarily broken in life; the
law does no more than recognize this truth, by
avoiding further grounds of resentment. (7 Manresa,
3d., p. 110.)
The oppositor cannot also derive comfort from the fact that
she is an adopted child of Francisca Mortera because under
our law the relationship established by adoption is limited
solely to the adopter and the adopted and does not extend to
the relatives of the adopting parents or of the adopted child
except only as expressly provided for by law. Hence, no
relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives of
the adopter.
The relationship established by the adoption,
however, is limited to the adopting parent, and does
not extend to his other relatives, except as expressly
provided by law. Thus, the adopted child cannot be
considered as a relative of the ascendants and
collaterals of the adopting parents, nor of the
legitimate children which they may have after the
adoption, except that the law imposes certain
impediments to marriage by reason of adoption.
Neither are the children of the adopted considered
as descendants of the adopter. The relationship
created is exclusively between the adopter and the
adopted, and does not extend to the relatives of
either. (Tolentino, Civil Code of the Philippines, Vol.
1, p. 652).
Relationship by adoption is limited to adopter and
adopted, and does not extend to other members of
the family of either; but the adopted is prohibited to
marry the children of the adopter to avoid scandal.
(An Outline of Philippine Civil Law by Justice Jose B.
L. Reyes and Ricardo C. Puno, Vol. 1, p. 313; See also
Caguioa, Comments and Cases on Civil Law 1955, Vol
1, pp. 312-313; Paras, Civil Code of the Philippines,
1959 ed., Vol. 1, p. 515)
It thus appears that the oppositor has no right to intervene
either as testamentary or as legal heir in this probate
proceeding contrary to the ruling of the court a quo.
2. The next question to be determined is whether the will
Exhibit A was duly admitted to probate. Oppositor claims that
the same should not have been admitted not only because it
was not properly attested to but also because it was procured
thru pressure and influence and the testatrix affixed her
signature by mistake believing that it contained her true
intent.
The claim that the will was not properly attested to is
contradicted by the evidence of record. In this respect it is fit
that we state briefly the declarations of the instrumental
witnesses.
Pilar Borja testified that the testatrix was in perfect state of
health at the time she executed the will for she carried her
conversation with her intelligently; that the testatrix signed
immediately above the attestation clause and on each and
every page thereof at the left-hand margin in the presence of
the three instrumental witnesses and the notary public; that
it was the testatrix herself who asked her and the other
witnesses to act as such; and that the testatrix was the first
one to sign and later she gave the will to the witnesses who
read and signed it.
Pilar G. Sanchez also testified that she knew the testatrix since
1945; that it was the testatrix herself who asked her to be a
witness to the will; that the testatrix was the first one to sign
and she gave the will later to the witnesses to sign and
afterwards she gave it to the notary public; that on the day of
the execution of the will the testatrix was in the best of
health.
Modesto Formilleza also testified that he was asked by the
testatrix to be one of the witnesses to the will; that he read
and understood the attestation clause before he signed the
document, and all the witnesses spoke either in Spanish or in
Tagalog. He finally said that the instrumental witnesses and
the testatrix signed the will at the same time and place and
identified their signatures.
This evidence which has not been successfully refuted proves
conclusively that the will was duly executed because it was
signed by the testatrix and her instrumental witnesses and
the notary public in the manner provided for by law.
The claim that the will was procured by improper pressure
and influence is also belied by the evidence. On this point the
court a quo made the following observation:
The circumstance that the testatrix was then living
under the same roof with Dr. Rene Teotico is no
proof adequate in law to sustain the conclusion that
there was improper pressure and undue influence.
Nor is the alleged fact of isolation of the testatrix
from the oppositor and her witnesses, for their
supposed failure to see personally the testatrix,
attributable to the vehemence of Dr. Rene Teotico, to
exclude visitors, took place years after the execution
of the will on May 17, 1951. Although those fact may
have some weight to support the theory of the
oppositor, yet they must perforce yield to the
weightier fact that nothing could have prevented the
testatrix, had she really wanted to from subsequently
revoking her 1951 will if it did not in fact reflect and
express her own testamentary dispositions. For, as
testified to by the oppositor and her witnesses, the
testatrix was often seen at the Escolta, in Quiapo and
Sta. Cruz, Manila, walking and accompanied by no
one. In fact, on different occasions, each of them was
able to talk with her.
We have examined the evidence on the matter and we are
fully in accord with the foregoing observation. Moreover, the
mere claim that Josefina Mortera and her husband Rene
Teotico had the opportunity to exert pressure on the testatrix
simply because she lived in their house several years prior to
the execution of the will and that she was old and suffering
from hypertension in that she was virtually isolated from her
friends for several years prior to her death is insufficient to
disprove what the instrumental witnesses had testified that
the testatrix freely and voluntarily and with full consciousness
of the solemnity of the occasion executed the will under
consideration. The exercise of improper pressure and undue
influence must be supported by substantial evidence and
must be of a kind that would overpower and subjugate the
mind of the testatrix as to destroy her free agency and make
her express the will of another rather than her own (Coso v.
Deza, 42 0. G. 596). The burden is on the person challenging
the will that such influence was exerted at the time of its
execution, a matter which here was not done, for the
evidence presented not only is insufficient but was disproved
by the testimony of the instrumental witnesses.
3. The question of whether the probate court could
determine the intrinsic validity of the provisions of a will has
been decided by this Court in a long line of decisions among
which the following may be cited:
Opposition to the intrinsic validity or legality of the provisions
of the will cannot be entertained in Probate proceeding
because its only purpose is merely to determine if the will has
been executed in accordance with the requirements of the
law." (Palacios v. Palacios, 58 0. G. 220)
... The authentication of a will decides no other questions
than such as touch upon the capacity of the testator and the
compliance with those requisites or solemnities which the law
prescribes for the validity of wills. It does not determine nor
even by implication prejudge the validity or efficiency of the
provisions, these may be impugned as being vicious or null,
notwithstanding its authentication. The questions relating to
these points remain entirely unaffected, and may be raised
even after the will has been authenticated. ...
From the fact that the legalization of a will does not
validate the provisions therein contained, it does not
follow that such provision lack the efficiency, or fail
to produce the effects which the law recognizes
when they are not impugned by anyone. In the
matter of wills it is a fundamental doctrine that the
will of the testator is the law governing the
interested parties, and must be punctually complied
with in so far as it is not contrary to the law or to
public morals. (Montaano v. Suesa, 14 Phil. 676,
679-680)
To establish conclusively as against everyone, and
once for all, the facts that a will was executed with
the formalities required by law and that the testator
was in a condition to make a will, is the only purpose
of the proceedings under the new code for the
probate of a will. (Sec. 625.) The judgment in such
proceedings determines and can determine nothing
more. In them the court has no power to pass upon
the validity of any provisions made in the will. It can
not decide, for example, that a certain legacy is void
and another one is valid. (Castaeda v. Alemany, 3
Phil. 426, 428)
Pursuant to the foregoing precedents the pronouncement
made by the court a quo declaring invalid the legacy made to
Dr. Rene Teotico in the will Exhibit A must be set aside as
having been made in excess of its jurisdiction. Another reason
why said pronouncement should be set aside is that the
legatee was not given an opportunity to defend the validity of
the legacy for he was not allowed to intervene in this
proceeding. As a corollary, the other pronouncements
touching on the disposition of the estate in favor of some
relatives of the deceased should also be set aside for the
same reason.
WHEREFORE, with the exception of that portion of the
decision which declares that the will in question has been
duly executed and admitted the same to probate, the rest of
the decision is hereby set aside. This case is ordered
remanded to the court a quo for further proceedings. No
pronouncement as to costs.

G.R. No. 149017 November 28, 2008
VALENTE RAYMUNDO,petitioner,
vs.
TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ,
EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN
SUAREZ, ET AL., respondents.
DECISION
NACHURA, J.:
This petition, filed under Rule 65 of the Rules of Court, assails
the Court of Appeals (CA) Decision1and Resolution2 in CA-G.R.
SP No. 58090 which reversed, set aside and recalled the
Regional Trial Court (RTC) Orders3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez'4 marriage was blessed
with both material wealth and progeny in herein respondents,
namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and
Reggineo,6 all surnamed Suarez. During their marriage,
governed by the conjugal partnership of gains regime, they
acquired numerous properties, which included the following:
(1) a parcel of land situated in Barrio Caniogan, Pasig with an
area of 348 square meters covered by Transfer Certificate of
Title (TCT) No. 30680; (2) property located in Pinagbuhatan,
Pasig, with an area of 1,020 square meters under Tax
Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block
2 covered by Tax Declaration No. A-01700723 (subject
properties).
After the death of Marcelo Sr. in 1955, Teofista and herein
respondents, as well as Elpidio Suarez,7executed an
Extrajudicial Settlement of Estate, 8 partitioning Marcelo Sr.'s
estate, thus:
WHEREAS, the said deceased is survived by the
parties hereto who are his only legal heirs: TEOFISTA
ISAGON, being the surviving spouse, and EUFROCINA
S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ,
EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ, being the legitimate children of
the deceased with the said TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO
SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ are represented herein by
EUFROCINA S. ANDRES, in her capacity as the
guardian and legal administrator of the property of
the said minors;
WHEREAS, there are no known debts or financial
obligations of whatever nature and amount against
the estate of the deceased;
NOW, THEREFORE, in consideration of the foregoing
premises, the Parties have agreed to settle and
liquidate the assets of the conjugal partnership
between the deceased and TEOFISTA ISAGON, and to
settle and adjudicate the estate of the said deceased,
by and pursuance to these presents, in the following
manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse
and partner of the deceased, shall receive in
absolute and exclusive ownership the following
properties as her lawful share in the assets of the
conjugal partnership of gains between her and the
deceased, to wit:
(a) Half (1/2) interest and participation in
the parcel of land covered by Tax
Declaration No. 6938, situated at Sitio
Pantayan, Municipality of Taytay, Province
of Rizal;
(b) Half (1/2) interest and participation in
the parcel of land covered by Tax
Declaration No. 6939, situated at Sitio
Pantayan, Municipality of Taytay, Province
of Rizal;
(c) Half (1/2) interest and participation in
the parcel of land covered by TCT No.
38291, situated at Barrio Rosario,
Municipality of Pasig, Province of Rizal;
(d) Half (1/2) interest and participation in
the parcel of land covered by TCT No.
38290, situated at Barrio Rosario,
Municipality of Pasig, Province of Rizal;
(e) TWELVE THOUSAND FIVE HUNDRED
THIRTY PESOS AND NINETY (P12,530.90)
deposited with the Commercial Bank and
Trust Company of the Philippines, and
THIRTY-NINE PESOS (P39.00) deposited with
Prudential Bank.
2. That the Parties TEOFISTA ISAGON, EUFROCINA S.
ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN
SUAREZ, MARCELO SUAREZ, JR. and REGGINEO
SUAREZ, shall each and all receive and be entitled to
a share equivalent to one-seventh (1/7) of the estate
of the deceased MARCELO SUAREZ, which estate is
comprised of the following properties, to wit:
(a) A parcel of land covered by TCT No.
30680, situated at Barrio Kaniogan,
Municipality of Pasig, Province of Rizal, with
an assessed value of P4,150.00.
(b) Three (3) parcels of land covered by TCT
Nos. 33982, 33983 and 33984, situated at
Barrio Pineda, Municipality of Pasig,
Province of Rizal, with an assessed value
of P560.00.
(c) A parcel of land covered by TCT 33986,
situated at Barrio Pineda, Municipality of
Pasig, Province of Rizal, with an assessed
value of P440.00.
(d) Two (2) parcels of land, being Lots Nos.
42 and 44 of the amendment-subdivision
plan TY-4653-Amd., being a portion of Lot 2
described on the original plan II-4653,
G.L.R.O. Record No. _____, situated at
Barrio Santolan, Municipality of Pasig,
Province of Rizal, with a total assessed value
of P590.00.
(e) Two parcels of land, being Lots Nos. 43
and 45 of the amendment-subdivision plan
 TY-4653-Amd., being a portion of Lot 2
described on the original plan II-4653,
G.L.R.O. Record No. _______, situated at
Barrio Santolan, Municipality of Pasig,
Province of Rizal, with a total assessed value
of P1,190.00.
(f) A parcel of land, being Lot No. 6, Block
269 of the subdivision plan pos-112, being a
portion of Lot 2, Block 348, Psd-3188,
G.L.R.O. Record Nos. 375,699 and 917,
situated at San Felipe Neri, Province of Rizal,
with an assessed value of P6,340.00.
(g) A parcel of land covered by OCT No. 391,
situated in the Municipality of Taytay,
Province of Rizal, with an assessed value
of P1,840.00.
(h) TWELVE THOUSAND (12,000) shares of
stock of the Consolidated Mines, Inc.
represented by Certificate No. 71-5-B (for
1,000 shares) and Certificate No. 12736 (for
11,000 shares).
PROVIDED, that their title to the properties
hereinabove mentioned shall be in common and the
share of each heir being pro indiviso.
Curiously, despite the partition, title to the foregoing
properties, explicitly identified in the Extrajudicial Settlement
of Estate as forming part of Marcelo's and Isagon's property
regime, remained in the couple's name. Not surprisingly,
Teofista continued to administer and manage these
properties. On the whole, apart from those now owned
exclusively by Teofista, all the properties were held pro
indiviso by Teofista and her children; and respective titles
thereto were not changed, with Teofista as de
facto administrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista,
the latter owning ninety percent (90%) of the former's shares
of stock, were sued by petitioner Valente Raymundo, his wife
Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs)
in consolidated cases for Rescission of Contract and Damages,
docketed as Civil Case Nos. 21736 to 21739. Thereafter, in
1975, the then Court of First Instance (CFI) of Rizal, Branch 1,
rendered judgment: (1) rescinding the respective contracts of
plaintiffs with Rizal Realty and Teofista, and (2) holding the
two defendants solidarily liable to plaintiffs for damages in
the aggregate principal amount of about P70,000.00.9
When the judgment of the CFI became final and executory,
herein subject properties were levied and sold on execution
on June 24, 1983 to satisfy the judgment against Teofista and
Rizal Realty. The aforementioned plaintiffs were the highest
bidder, and bought the levied properties for the amount
of P94,170.00. As a result, a certificate of sale was issued to
them and registered in their favor on August 1, 1983. On July
31, 1984, the Provincial Sheriff of Rizal issued a final deed of
sale over the subject properties.
Parenthetically, before expiration of the redemption period,
or on June 21, 1984, herein respondents filed a revindicatory
action against petitioner Valente, Violeta, Virginia and Maria
Concepcion, docketed as Civil Case No. 51203, for the
annulment of the auction sale and recovery of ownership of
the levied properties. Essentially, respondents alleged in their
complaint that they cannot be held liable for the judgment
rendered against their mother, Teofista, not having been
impleaded therein; and consequently, the subject properties,
which they own pro indiviso with their mother, can neither be
levied nor be sold on execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1,
in Civil Case Nos. 21376 to 21379, issued an Order 10 directing
Teofista: (1) to vacate the subject properties, (2) to desist
from despoiling, dismantling, removing or alienating the
improvements thereon, (3) to place petitioner Valente,
Violeta, Virginia and Maria Concepcion in peaceful possession
thereof, and (4) to surrender to them the owner's duplicate
copy of the torrens title and other pertinent documents.
Herein respondents, joined by their mother, Teofista, filed a
Motion for Reconsideration arguing that the subject
properties are co-owned by them and further informing the
RTC of the filing and pendency of Civil Case No. 51203.
Nonetheless, the trial court denied Teofista's and herein
respondents' motion, reiterated its previous order, which
included, among others, the order for Teofista and all persons
claiming right under her, to vacate the lots subject of the
judicial sale.
Undaunted, Teofista and herein respondents filed a petition
for certiorari before the CA to annul the foregoing orders. The
appellate court, on July 6, 1987, dismissed Teofista's and
herein respondents' petition, thus:
We believe this petition cannot prosper for two
reasons. First, as purported case for certiorari it fails
to show how the respondent judge had acted
without or in excess of jurisdiction or with grave
abuse of discretion. The two orders being assailed
were preceded by a final judgment, a corresponding
writ of execution, a levy on execution and a judicial
sale, all of which enjoy a strong sense presumption
of regularity.
Secondly, as far as [petitioner] Teofista Suarez is
concerned, she cannot complain about the levy
because she was a party in the consolidated cases
where judgment was rendered against her in her
personal capacity. Since she did not appeal from the
decision, she cannot say that the judgment is
erroneous for an obligation that belong to the
corporation. And with respect to the children of
Teofista Suarez, who are co-petitioners in this
proceedings [herein respondents], suffice it to point
out that not being parties in the consolidated cases,
what they should have done was to immediately file
a third party claim. The moment levy was made on
the parcels of land, which they claim are theirs by
virtue of hereditary succession, they should have
seasonably filed such claim to protect their rights. As
the record discloses, however, the children chose to
remain silent, and even allowed the auction sale to
be held, filing almost a year later a half-hearted
complaint to annul the proceedings which they
allowed to be dismissed by not diligently prosecuting
it.
In Santos v. Mojica (10 SCRA 318), a partition case
with third- party claimants, the Supreme Court came
out with the following ruling: "The procedure (a
petition for certiorari) followed by him (a petitioner
not party to the original partition case) in vindicating
his right is not the one sanctioned by law, for he
should have filed a separate and independent action
making parties therein the sheriff and the plaintiffs
responsible for the execution xxx. It can, therefore,
 be said that (he) acted improperly in filing the
present petition because his remedy was to file a
separate and independent action to vindicate his
ownership over the land.
WHEREFORE, the petition is denied and the
restraining order previously issued is DISSOLVED,
with costs against petitioners.11
On the other litigation front concerning Civil Case No. 51203,
a writ of preliminary injunction was issued by the RTC Pasig,
Branch 155, on February 25, 1985, enjoining petitioner
Valente, Violeta, Virginia and Maria Concepcion from
transferring to third parties the levied properties based on its
preliminary finding that the auctioned properties are co-
owned by Teofista and herein respondents. Subsequently,
however, Civil Case No. 51203 was dismissed by the RTC,
Branch 155, at the instance of petitioner Valente for failure of
herein respondents to prosecute. But in yet another turn of
events, the RTC, Branch 155, lifted its previous order of
dismissal and directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and
Maria Concepcion's turn to file a petition for certiorari with
the CA, assailing the various orders of the RTC, Branch 155,
which all rejected their bid to dismiss Civil Case No. 51203.
The CA granted their petition, thus:
And the fact that herein private respondents, as the
legal heirs of Teofista Vda. de Suarez and supposedly
not parties in Civil Case Nos. 21376 - 21379 does not
preclude the application of the doctrine of res
judicata since, apart from the requisites constitutive
of this procedural tenet, they were admittedly the
children of Teofista Suarez, who is the real party-in-
interest in the previous final judgment. As
successors-in-interest of Teofista Suarez, private
respondents merely stepped into the shoes of their
mother in regard to the levied pieces of property.
Verily, there is identity of parties, not only where the
parties in both actions are the same, but where
there is privity with them as in the cases of
successors-in-interest by title subsequent to the
commencement of the action or where there is
substantial identity.
Finally, the action to annul the judicial sale filed by
herein private respondents is not the reinvindicatory
suit, much less the third party claim contemplated by
Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby
granted and the questioned orders dated February
25, 1985, May 19, 1989 and February 26, 1990
issued in Civil Case No. 51203 are hereby annulled;
further respondent judge is ordered to dismiss Civil
Case No. 51203.12
From this ruling, herein respondents appealed to the
Supreme Court. In Suarez v. Court of Appeals,13we reversed
the appellate court, thus:
Even without touching on the incidents and issues
raised by both petitioner [herein respondents] and
private respondents [petitioner Valente, Violeta,
Virginia and Maria Concepcion] and the
developments subsequent to the filing of the
complaint, [w]e cannot but notice the glaring error
committed by the trial court.
It would be useless to discuss the procedural issue
on the validity of the execution and the manner of
publicly selling en masse the subject properties for
auction. To start with, only one-half of the 5 parcels
of land [subject properties] should have been the
subject of the auction sale.
The law in point is Article 777 of the Civil Code, the
law applicable at the time of the institution of the
case:
The rights to the succession are transmitted from the
moment of the death of the decedent."
Article 888 further provides:
"The legitime of the legitimate children and
descendants consists of one-half of the
hereditary estate of the father and of the
mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of
the surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate
children or descendants, the surviving
spouse shall be entitled to a portion equal
to the legitime of each of the legitimate
children or descendants."
Thus, from the foregoing, the legitime of the
surviving spouse is equal to the legitime of each
child.
The proprietary interest of petitioners [herein
respondents] in the levied and auctioned property is
different from and adverse to that of their mother
[Teofista]. Petitioners [herein respondents] became
co-owners of the property not because of their
mother [Teofista] but through their own right as
children of their deceased father [Marcelo Sr.].
Therefore, petitioners [herein respondents] are not
barred in any way from instituting the action to
annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals
dated July 27, 1990 as well as its Resolution of
August 28, 1990 are hereby REVERSED and set aside;
and Civil Case No. 51203 is reinstated only to
determine that portion which belongs to petitioners
and to annul the sale with regard to said portion.
It was at this point when another series of events transpired,
culminating in the present petition.
Upon our reinstatement of Civil Case No. 51203, each and
every pleading filed by herein respondents, as plaintiffs
therein, was hotly contested and opposed by therein
defendants, including petitioner Valente. Moreover, even at
that stage, when the case had been remanded with a
directive to "determine that portion which belongs to [herein
respondents] and to annul the sale with regard to said
portion," Civil Case No. 51203 had to be re-raffled and
transferred, for varied reasons, to the different court
branches in Pasig City. In between all these, petitioner
Valente, along with the other defendants, repeatedly filed a
Motion to Dismiss Civil Case No. 51203 for the purported
failure of herein respondents to prosecute the case. Most of
these Motions to Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which
the case was raffled had to study the records anew.
Expectedly, part of the records went missing and were lost.
On April 12, 1993, the Clerk of Court of RTC, Branch 71, to
which Civil Case No. 51203 was remanded, filed a report on
the records of the case, to wit:
1. The first volume of the record in the above-
entitled case was recorded as received on June 20,
1990, by Sheriff Alejandro O. Loquinario;
2. That the staff of Branch 71 at this time was sharing
a small room with Branch 161 at the First Floor of
the Justice Hall, and as the Branch was newly
formed, it had no equipment or furniture of its own,
and was still undermanned;
3. That sometime in August 1990, Branch 71 moved
to the staffroom of Branch 159 at the Second Floor
of the Justice Hall;
4. That on October 25, 1990, this Court received a
Notice of Judgment dated October 22, 1990 from the
Court of Appeals that ruled the dismissal of the
above-entitled case, and as per standing instructions
of Judge Graduacion A. Reyes-Claravall, the same
was bound as volume 2 of the case;
5. That just before the Christmas vacation in 1991,
the branch was forced to hastily move all of its
records and equipment to branch 69, because of the
unexpected notice we received that the room we
were occupying was to be demolished in order to
meet the schedule for the renovation of the building;
6. That unfortunately, the room was demolished
before the undersigned could make a last check to
see if everything was transferred;
7. That it was only later on that this office discovered
that important documents were indeed lost,
including transcripts of stenographic notes in a case
that was submitted for decision;
8. That sometime in May 1992, the branch moved its
Office to its present location;
9. That on March 8, 1993, this Court received a copy
of a Decision of the Supreme Court reversing the
earlier ruling of the Court of Appeals;
10. That it was at this time that the first volume of
this case, which was bundled along with other cases
which were decided and/or archived, was reported
as missing;
11. That from the time the same was found to be
missing, Judge Claravall ordered that a search for the
same be made in all of the offices wherein this
branch was forced to share a room with, as well as
the Court of Appeals, in the event that the same was
transmitted to said Court;
12. That all the efforts were in vain, as said record
could not be located anywhere;
13. That the undersigned now concludes that the
first volume of the above-entitled case was probably
lost during the renovation of the Justice Hall
Building, and will have to be reconstituted with the
use of documents in the possession of the parties, or
documents entered as exhibits in other Courts. 14
In this regard, herein respondents filed a Motion for
Reconstitution of Records15 of the case. Initially, petitioner
Valente, and the other defendants -- Violeta, Virginia and
Maria Concepcion -- opposed the motion.16 However, the trial
court eventually granted the motion for reconstitution, and
ordered petitioner Valente and the other defendants to
submit a copy of their Answer filed thereat and copies of
other pleadings pertinent to the case.17
Thereafter, three (3) incidents, among numerous others, set
off by the parties' pleadings, are worth mentioning, to wit:
1. A Motion for Leave to File and Admit Supplemental
Complaint18 filed by herein respondents. The Supplemental
Complaint additionally prayed that the levy and sale at public
auction of the subject properties be annulled and set aside, as
the bid price was unconscionable and grossly inadequate to
the current value of the subject properties. The Supplemental
Complaint further sought a re-bidding with respect to
Teofista's share in the subject properties. Finally, it prayed
that TCT No. 6509 in the name of petitioner Valente, Violeta,
Virginia and Maria Concepcion be cancelled and TCT No.
30680 in the name of Marcelo Suarez, married to Teofista
Isagon, be reinstated.
2. A Manifestation and Motion (to Execute/Enforce Decision
dated September 4, 1992 of the Supreme Court) 19 filed by
herein respondents pointing out that the Supreme Court itself
had noted the current increased value of the subject
properties and that petitioner Valente, Violeta, Virginia and
Maria Concepcion unjustly enriched themselves in
appropriating the subject properties worth millions then, for a
measly bid price of P94,170.00, for a judgment obligation
worth only P70,000.00.
3. An Urgent Motion [to direct compliance by plaintiffs
(herein respondents) with Supreme Court Decision or to
consider the matter submitted without evidence on the part
of plaintiffs]20 filed by therein defendants, including herein
petitioner Valente, pointing out that plaintiffs (herein
respondents) have yet to comply with the RTC, Branch 67
Order commanding them to submit (to the RTC) any evidence
showing settlement of the estate of the deceased Marcelo
Suarez, in order for the court to determine the portion in the
estate which belongs to Teofista. The Urgent Motion stated in
paragraph 2, thus:
2. The defendants [including herein petitioner
Valente] did everything possible to expedite the
disposition of this case while the plaintiffs [herein
respondents] did everything possible to DELAY the
disposition of the same obviously because the
plaintiffs [herein respondents] are in full possession
and enjoyment of the property in dispute. In its
decision of September 4, 1992, the SUPREME COURT
nullified TWO final and executory DECISIONS of the
Court of Appeals in an unprecedented action. In said
decision, the Supreme Court ordered the plaintiffs
[herein respondents] to establish with evidence their
 personality as heirs of Marcelo Suarez, and after
being able to do so, to adduce evidence that would
determine what portion belongs to plaintiffs hence
the above matters need be litigated upon before the
RTC can "annul the sale with regard to said portion"
(belonging to the plaintiffs alleged heirs).
On these incidents, the records reveal the following Orders
issued by the different branches of the RTC:
1. Order dated March 17, 1995, issued by Presiding Judge
Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein
respondents' Supplemental Complaint.21
2. Order dated January 22, 1996, issued by Judge Apolinario
B. Santos resolving: (a) herein respondents' Manifestation and
Motion (to execute/enforce Decision dated September 4,
1992 of the Supreme Court), and (b) therein defendants'
(including herein petitioner Valente's) Request for Answer to
Written Interrogatories.22 The RTC, Branch 67, resolved the
incidents, thus:
From the foregoing uncontroverted facts, this Court
is convinced beyond a shadow of doubt that the
Decision of the Supreme Court of September 4,
1992, being the final arbiter in any judicial dispute,
should be implemented for the following reasons:
xxxx
On the request for Answers to Written
Interrogatories filed by the defendants, it is obvious
that at this stage of the proceedings where the
Supreme Court had already pronounced the
undisputed facts, which binds this court, the answer
sought to be elicited through written interrogatories,
therefore, are entirely irrelevant, aside from having
been filed way out of time.
WHEREFORE, premises considered, this court,
implements the decision of the Supreme Court dated
September 4, 1992 which mandates that:
"xxx and Civil Case No. 51203 is reinstated
only to determine that portion which
belongs to petitioner and to annul the sale
with regard to said portion."
In order to enforce such mandate of the
Supreme Court, this court orders that:
a. The auction sale of the five (5) parcels of
land and all prior and subsequent
proceedings in relation thereto are declared
null and void.
b. Transfer Certificate of Title No. 6509 in
the name of defendant Valente Raymundo
is also declared null and void, and the
Register of Deeds of Rizal, Pasig City, is
ordered to issue a new one in the name of
the deceased Marcelo Suarez or to reinstate
Transfer Certificate of Title No. 30680 in the
name of Marcelo Suarez.
c. Teofista Suarez is ordered to reimburse
the amount of P94,170.00, plus legal
interest from the date of issuance of this
order, and failing which, the portion of the
estate of Marcelo Suarez belonging to the
surviving spouse, Teofista Suarez, may be
levied on execution.
d. [Herein respondents], including Teofista
Suarez, are hereby ordered to submit to this
court any evidence showing settlement of
the estate of the deceased, Marcelo Suarez,
in order for this court to determine the
portion in the estate which belongs to
Teofista Suarez.
Therein defendants, including petitioner Valente, filed a
Motion for Reconsideration which the trial court denied on
May 29, 1996.
3. Order dated September 10, 1996, issued by Judge Santos
denying the appeal interposed by petitioner Valente from the
January 22, 1996 and May 29, 1996 Orders, ruling that these
are interlocutory orders, and, therefore, not appealable. 23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago
Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the
birth certificates of the heirs of the plaintiff to prove their
affiliation with the deceased which is one of the matters
written in the decision of the higher court which must be
complied with, and in order for counsel for the plaintiffs
[herein respondents] to have the opportunity to complete all
documentary evidence and in view of abbreviating the
proceedings and as prayed for, today's scheduled pre-trial is
re-set for the last time to May 19, 1999 at 8:30 a.m.
In this connection, counsel for plaintiffs [herein
respondents] is advised to secure all the
documentary evidence she needs material to this
case which will expedite the disposition of this
case.24
This last Order and therein defendants' Urgent Motion
spawned another contentious issue between the parties. In
this connection, Judge Estrella issued an Order 25 requiring the
parties to file their respective position papers due to the
"divergent views on the nature of the hearing that should be
conducted in compliance with" our decision in Suarez. Both
parties duly filed their position papers, with herein
respondents attaching thereto a copy of the Extrajudicial
Settlement of Estate executed by the heirs of Marcelo Suarez
in 1957.
In resolving this latest crossfire between the parties, the RTC,
Branch 67, issued an Order dated January 11, 2000, which
reads, in part:
This Court is of the view that the Honorable Supreme
Court is not a trier of facts, precisely it directed that
the records of this case be remanded to the Regional
Trial Court for further proceedings.
xxxx
It is a matter of record that there was no trial on the
merits completed in the Regional Trial Court. xxx The
Supreme Court reversed the judgment of the Court
of Appeals and ordered the reinstatement of Civil
Case No. 51203. Naturally, there was no trial on the
merits before this Court that allowed the parties to
adduce evidence to establish their respective claims
 in the plaintiffs' [herein respondents] complaint and
in the defendants' [including petitioner Valente]
counter-claim, respectively. It is in this context that
the Honorable Supreme Court reinstated the "action
[of herein respondents] to annul the auction sale to
protect their [herein respondents] own interest.
While this Court is of the view that trial on the merits
is necessary for the purpose of giving the plaintiffs
[herein respondents] a chance to adduce evidence to
sustain their complaint and the defendants
[including petitioner Valente] to prove their defense,
consistent with the directive of the Honorable
Supreme Court (in its Decision promulgated on
September 4, 1992), the Court is, however,
confronted with the very recent decision of the
Honorable Supreme Court in "Heirs of Guido
Yaptinchay, et al. vs. Del Rosario, et al., G.R. No.
124320, March 2, 1999" where it held that -
The declaration of heirship must be made in
an administration proceeding, and not in an
independent civil action. This doctrine was
reiterated in Solve vs. Court of Appeals (182
SCRA 119, 128). The trial court cannot make
a declaration of heirship in the civil action
for the reason that such a declaration can
only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules
of Court, a civil action is defined as "one by
which a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong" while a
special proceeding is "a remedy by which a
party seeks to establish a status, a right, or a
particular fact." It is then decisively clear
that the declaration of heirship can be made
only in a special proceeding inasmuch as the
petitioners here are seeking the
establishment of a status or right.
In as much as the leading case on the matter is that
of "Heirs of Yaptinchay v. Del Rosario, G.R. No.
124320, March 2, 1999" it is left with no choice but
to obey said latter doctrine.
WHEREFORE, the foregoing premises considered,
this Court holds that in the light of the doctrine laid
down in the case of "Heirs of Yaptinchay vs. Del
Rosario, G.R. No. 124320, March 2, 1999" this case is
dismissed without prejudice to the plaintiffs' [herein
respondents'] filing a special proceeding consistent
with said latest ruling.26
Herein respondents moved for reconsideration thereof which,
however, was denied by the RTC, Branch 67 on March 14,
2000.27
Consequently, herein respondents filed a petition
for certiorari before the CA alleging grave abuse of discretion
in the trial court's order dismissing Civil Case No. 51203
without prejudice. All the defendants in the trial court were
impleaded as private respondents in the petition. Yet,
curiously, only petitioner Valente filed a Comment thereto.
The appellate court granted the petition, recalled and set
aside RTC, Branch 67's Orders dated January 11, 2000 and
March 14, 2000, and reinstated Judge Santos' Orders dated
May 29, 1996 and September 6, 1996. It disposed of the
petition, thus:
We agree with [herein respondents].
On September 4, 1992, the Supreme Court (G.R. No.
94918) reversed the decision of the Court of Appeals
and mandates that Civil Case No. 51203 be
reinstated in order to determine the portion in the
estate which belongs to Teofista Suarez. The sale of
the parcels of land was declared null and void.
Necessarily, the title (TCT No. 5809) in the name of
respondents was also declared null and void. xxx
xxxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court,
Pasig City, on January 22, 1996 and on motion of
[herein respondents], issued an order to
execute/enforce the decision of the Supreme Court
xxx.
xxxx
[Petitioner Valente, Violeta, Virginia and Maria
Concepcion] filed a notice of appeal on the order of
Judge Santos. The appeal, on motion of [herein
respondents] was denied on September 10,
1996. Obviously, the decision of the Supreme Court
had become final and executory. Likewise, both
orders of Judge Santos dated May 29, 1996 denying
the motion for reconsideration and the denial of the
notice of appeal dated September 6, 1996 had also
become final and executory.
The denial of petitioner Valente's Motion for Reconsideration
prompted the filing of this present petition for certiorari.
Petitioner Valente posits that the appellate court committed
grave abuse of discretion in recalling and setting aside the
Orders of Judge Estrella and reinstating those of Judge Santos
because:
1. The CA ruled that the Orders dated May 29, 1996
and September 6, 1996 issued by Judge Santos were
final and executory, and yet the latter did not allow
an appeal to be taken therefrom ratiocinating that
the questioned orders were interlocutory, and
therefore, not appealable; and
2. The CA ignored and violated the Supreme Court's
ruling in Heirs of Yaptinchay v. Del Rosario28 which
held that a declaration of heirship must be made in a
special proceeding and not in a civil action.
We find the petition bereft of merit.
At the outset, we note that petitioner Valente incorrectly filed
a petition for certiorari to appeal the CA decision. Petitioner
should have filed a petition for review on certiorari under
Rule 45 of the Rules of Court. Simply imputing in a petition
that the decision sought to be reviewed is tainted with grave
abuse of discretion does not magically transform a petition
into a special civil action for certiorari. The CA decision
disposed of the merits of a special civil action, an original
petition, filed thereat by herein respondents. That disposition
is a final and executory order, appealable to, and may be
questioned before, this Court by persons aggrieved thereby,
such as petitioner Valente, via Rule 45.
On this score alone, the petition should have been dismissed No appeal may be taken from:
outright. However, we have disregarded this procedural flaw
and now resolve this case based on the merits or lack thereof. xxx

Petitioner asseverates that the assailed CA ruling "is unfair (c) An interlocutory order;
and it amounts to a trickery to prevent an appeal against a
final order by claiming that the appealed order is merely xxx
interlocutory and later maintain that the same order has
become final after declaring it to be interlocutory."
In all the above instances where the judgment or
final order is not appealable, the aggrieved party
We reject petitioner's paltry contention. Petitioner apparently may file an appropriate special civil action under
does not comprehend the distinction between an Rule 65.
interlocutory order which is final and executory, and a final
order which disposes of the controversy or case; much less,
Clearly, the denial of therein defendants' (including petitioner
understand the available remedies therefrom.
Valente's) appeal from the Orders dated May 29, 1996 and
September 6, 1996 was in order. Thus, the CA decision
We have defined an interlocutory order as referring to affirming the RTC's denial was correct.
something between the commencement and the end of the
suit which decides some point or matter but it is not the final
Further, on this crucial distinction as applied to this case,
decision on the whole controversy.29 It does not terminate or
petitioner Valente filed a petition for certiorari from the CA
finally dismiss or finally dispose of the case, but leaves
decision in CA-G.R. SP No. 58090, which is not an
something to be done by the court before the case is finally
interlocutory order. It is a final order which completely
decided on the merits.30 Upon the other hand, a final order is
disposed of the merits of the case with nothing more left to
one which leaves to the court nothing more to do to resolve
be done therein. The correct and available remedy available
the case.31
to petitioner Valente was, as previously discussed, a petition
for review on certiorari under Rule 45 of the Rules of Court.
On more than one occasion, we laid down the test to
ascertain whether an order is interlocutory or final i.e., "Does
In fine, petitioner Valente erroneously sought relief through
it leave something to be done in the trial court with respect to
reversed remedies. He tried to appeal the interlocutory
the merits of the case?" If it does, it is interlocutory; if it does
orders of the RTC which are unappealable. Thus, the RTC
not, it is final. The key test to what is interlocutory is when
properly denied his Notice of Appeal, and the CA correctly
there is something more to be done on the merits of the
upheld the RTC. He should have filed a petition for certiorari;
case.32 The Orders dated May 29, 1996 and September 6,
under Rule 65. On the other hand, from the final order of the
1996 issued by Judge Santos are interlocutory, and therefore,
CA, he comes before this Court on a petition
not appealable, as they leave something more to be done on
for certiorari under Rule 65, when the proper remedy is an
the merits of the case. In fact, in paragraph (d) of Judge
appeal by certiorari under Rule 45.
Santos' Order dated May 29, 1996, herein respondents were
directed to submit evidence showing settlement of the estate
In the recent case of Jan-Dec Construction Corporation v.
of the deceased Marcelo Sr.
Court of Appeals33 we ruled in this wise:
Contrary to petitioner Valente's stance, there is no trickery or
As a rule, the remedy from a judgment or final order
chicanery in the CA's distinction between an interlocutory and
of the CA is appeal via petition for review under Rule
a final order. Indeed, as ruled by the CA, the RTC Order
45 of the Rules.
denying petitioner Valente's Notice of Appeal attained finality
when he failed to file a petition for certiorariunder Rule 65 of
the Rules of Court. Under Rule 45, decisions, final orders or resolutions
of the CA in any case, i.e., regardless of the nature of
the action or proceedings involved, may be appealed
We cannot overemphasize the rule that the correct
to the Court by filing a petition for review, which
identification of the nature of an assailed order determines
would be but a continuation of the appellate process
the remedies available to an aggrieved party. The old Rules of
over the original case. It seeks to correct errors of
Court in Section 2, Rule 41 reads, thus:
judgment committed by the court, tribunal, or
officer. In contrast, a special civil action
SEC. 2. Judgments or orders subject to appeal.-Only
for certiorari under Rule 65 is an independent action
final judgments or orders shall be subject to appeal.
based on the specific grounds therein provided and
No interlocutory or incidental judgment or order
proper only if there is no appeal or any plain, speedy
shall stay the progress of an action, nor shall it be the
and adequate remedy in the ordinary course of law.
subject of appeal until final judgment or order is
It is an extraordinary process for the correction of
rendered for one party or the other.
errors of jurisdiction and cannot be availed of as a
substitute for the lost remedy of an ordinary appeal.
xxxx
Independently of this procedural infirmity, even on the merits
With the advent of the 1997 Rules of Civil Procedure, Section of the case, the petition does not fare otherwise. It must be
1, Rule 41 now provides for the appropriate remedy to be dismissed for lack of merit.
taken from an interlocutory order, thus:
Petitioner Valente insists that, following our ruling in Heirs of
SECTION 1. Subject of appeal. - An appeal may be Yaptinchay v. Del Rosario,34 herein respondents must first be
taken from a judgment or final order that completely declared heirs of Marcelo Sr. before they can file an action to
disposes of the case, or of a particular matter therein annul the judicial sale of what is, undisputedly, conjugal
when declared by these Rules to be appealable. property of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not
applicable.
Herein respondents' status as legitimate children of Marcelo
Sr. and Teofista and thus, Marcelo Sr.'s heirs has been
firmly established, and confirmed by this Court in Suarez v.
Court of Appeals.35 True, this Court is not a trier of facts,36 but
as the final arbiter of disputes,37 we found and so ruled that
herein respondents are children, and heirs of their deceased
father, Marcelo Sr. This having been settled, it should no
longer have been a litigated issue when we ordered a remand
to the lower court. In short, petitioner Valente's, Violeta's,
Virginia's, and Maria Concepcion's representation in the RTC
that our ruling in Suarez required herein respondents to
present evidence of their affiliation with the deceased,
Marcelo Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil
Case No. 51203 is reinstated only to determine that portion
which belongs to [herein respondents] and to annul the sale
with regard to said portion." There is clearly no intimation in
our decision for the RTC to have to determine an already
settled issue i.e., herein respondents' status as heirs of
Marcelo Sr.
Moreover, petitioner Valente cannot assail, directly or
indirectly, the status of herein respondents as legitimate
children of Marcelo Sr. and Teofista, and likewise demand that
herein respondents first prove their filiation to Marcelo Sr.
The following records bear out Marcelo, Sr.'s and Teofista's
paternity of herein respondents, and the latter's status as
legitimate children:
1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where
Teofista, along with herein respondents, questioned the RTC,
Branch 151's Orders dated October 10, 1984 and October 14,
1986. Although the CA ruled against Teofista and herein
respondents, it explicitly recognized the latter's status as
legitimate children of Teofista and Marcelo Sr.; and 38
2. The CA decision in CA-G.R. SP No. 20320 which incorrectly
ruled that herein respondents were, as children of Teofista,
merely successors-in-interest of the latter to the property and
by virtue thereof, bound by the judgment in Civil Case Nos.
21376 to 21379 consistent with the doctrine of res
judicata.39 We subsequently reversed this ruling on the wrong
application of res judicata in the conclusive case of Suarez.
We retained and affirmed, however, the CA's factual finding of
herein respondents' status as heirs of Marcelo Sr. We
categorically held therein that "the proprietary interest of
[herein respondents] in the levied and auctioned [properties]
is different from and adverse to that of [Teofista]. [Herein
respondents] became co-owners of the property not because
of [Teofista] but through their own right as children of their
deceased father [, Marcelo Sr.]."
Clearly, herein respondents' long possessed status of
legitimate children of Marcelo Sr. and Teofista cannot be
indirectly or directly attacked by petitioner Valente in an
action to annul a judicial sale.
Articles 262,40 263,41 265 and 26642 of the Civil Code, the
applicable law at the time of Marcelo's death, support the
foregoing conclusion, to wit:
Art. 262. The heirs of the husband may impugn the
legitimacy of the child only in the following cases:
(1) If the husband should die before the
expiration of the period fixed for bringing
his action;
(2) If the husband should die after the filing
of the complaint, without having desisted
from the same;
(3) If the child was born after the death of
the husband.
Art. 263. The action to impugn the legitimacy of the
child shall be brought within one year from the
recording of birth in the Civil Register, if the husband
should be in the same place, or in a proper case, any
of his heirs.
If he or his heirs are absent, the period shall be
eighteen months if they should reside in the
Philippines; and two years if abroad. If the birth of
the child has been concealed, the term shall be
counted from the discovery of the fraud.
Art. 265. The filiation of legitimate children is proved
by the record of birth appearing in the Civil Register,
or by an authentic document or a final judgment.
Art. 266. In the absence of the titles indicated in the
preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or
declaration of nullity of certain TCT's was dismissed for failure
of the petitioners to demonstrate "any proof or even a
semblance of it" that they had been declared the legal heirs
of the deceased couple, the spouses Yaptinchay. In stark
contrast, the records of this case reveal a document, an
Extrajudicial Settlement of Marcelo Sr.'s estate, which
explicitly recognizes herein respondents as Marcelo Sr.'s
legitimate children and heirs. The same document settles and
partitions the estate of Marcelo Sr. specifying Teofista's
paraphernal properties, and separates the properties she
owns in common with her children, herein respondents.
Plainly, there is no need to re-declare herein respondents as
heirs of Marcelo Sr., and prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria
Concepcion, became owners of the subject properties only by
virtue of an execution sale to recover Teofista's judgment
obligation. This judgment obligation is solely Teofista's, and
payment therefor cannot be made through an execution sale
of properties not absolutely owned by her. These properties
were evidently conjugal properties and were, in fact, even
titled in the name of Marcelo, Sr. married to Teofista. Thus,
upon Marcelo Sr.'s death, by virtue of compulsory succession,
Marcelo Sr.'s share in the conjugal partnership was
transmitted by operation of law to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit
not categorized as such in Article 77843 of the Civil Code. It
reserves a portion of the net estate of the decedent in favor
of certain heirs, or group of heirs, or combination of heirs,
prevailing over all kinds of succession.44 The portion that is so
reserved is the legitime. Article 886 of the Civil Code defines
legitime as "that part of the testator's property which he
cannot dispose of because the law has reserved it for certain
heirs who are, therefore, called compulsory heirs." Herein
respondents are primary compulsory heirs,45 excluding
secondary compulsory heirs,46 and preferred over concurring
compulsory heirs in the distribution of the decedent's
estate.47
Even without delving into the Extrajudicial Settlement of
Marcelo Sr.'s estate in 1957, it must be stressed that herein
respondents' rights to the succession vested from the
moment of their father's death.48 Herein respondents'
ownership of the subject properties is no longer inchoate; it
became absolute upon Marcelo's death, although their
respective shares therein remained pro indiviso. Ineluctably,
at the time the subject properties were sold on execution sale
to answer for Teofista's judgment obligation, the inclusion of
herein respondents' share therein was null and void.
In fine, Teofista's ownership over the subject properties is not
absolute. Significantly, petitioner Valente does not even
attempt to dispute the conjugal nature of the subject
properties. Since Teofista owns only a portion of the subject
properties, only that portion could have been, and was
actually, levied upon and sold on auction by the provincial
sheriff of Rizal. Thus, a separate declaration of heirship by
herein respondents is not necessary to annul the judicial sale
of their share in the subject properties.
proceeding which could be long, hence, not
expeditious, just to establish the status of petitioners
as heirs is not only impractical; it is burdensome to
the estate with the costs and expenses of an
administration proceedings. And it is superfluous in
light of the fact that the parties to the civil case-
subject of the present case, could and had already in
fact presented evidence before the trial court which
assumed jurisdiction over the case upon the issues it
defined during pre-trial.
In fine, under the circumstances of the present
case, there being no compelling reason to still
subject Portugal's estate to administration
proceedings since a determination of petitioners'
status as heirs could be achieved in the civil case
filed by petitioners xxx.53
All told, under the circumstances, in addition to the already
settled status of herein respondents as heirs of Marcelo Sr.,
there is no need to dismiss Civil Case No. 51203 and require
herein respondents to institute a separate special proceeding
for a declaration of their heirship.

We note the recent case of Portugal v. Portugal-
Beltran,49 where we scrutinized our rulings in Heirs of
Yaptinchay and the cited cases of Litam v. Rivera50 and Solivio
v. Court of Appeals,51 and Guilas v. CFI Judge of
Pampanga52 cited in Solivio. We ruled thus:
WHEREFORE, premises considered, the petition is DENIED.
The Decision of the Court of Appeals in CA-G.R. SP No. 58090
is AFFIRMED. The Orders dated May 29, 1996 and September
6, 1996 issued by Judge Santos are REINSTATED. Costs against
the petitioner.

The common doctrine in Litam, Solivio and Guilas in SO ORDERED.

which the adverse parties are putative heirs to the
estate of a decedent or parties to the special
proceedings for its settlement is that if the special
proceedings are pending, or if there are no special
proceedings filed but there is, under the
circumstances of the case, a need to file one, then
the determination of, among other issues, heirship
should be raised and settled in said special
proceedings. Where special proceedings had been
instituted but had been finally closed and
terminated, however, or if a putative heirs has lost
the right to have himself declared in the special
proceedings as co-heir and he can no longer ask for
its re-opening, then an ordinary civil action can be
filed for his declaration as heir in order to bring
about the annulment of the partition or distribution
or adjudication of a property or properties belonging
to the estate of the deceased.

In the case at bar, respondent, believing rightly or

wrongly that she was the sole heir to Portugal's
estate, executed on February 15, 1988 the
questioned Affidavit of Adjudication under the
second sentence of Rule 74, Section of the Revised
Rules of Court. Said rule is an exception to the
general rule that when a person dies leaving
property, it should be judicially administered and the
competent court should appoint a qualified
administrator, in the order established in Sec. 6, Rule
78 in case the deceased left no will, or in case he did,
he failed to name an executor therein.

xxx

It appearing, however, that in the present case the

only property of the intestate estate of Portugal is
the Caloocan parcel of land, to still subject it, under
the circumstances of the case, to a special

G.R. No. L-34395 May 19, 1981
BEATRIZ L. GONZALES, petitioner,
vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO
F. LEGARDA, ROSARIO L. VALDEZ, ALEJANDRO LEGARDA,
TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y
FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA
LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ,
ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y
HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME
LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT,
ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y
LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE
LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT,
BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y
LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DONA
FILOMENA ROCES DE LEGARDA, respondents.
AQUINO, J.:1wph1.t
Beatriz Legarda Gonzales appealed from the decision of the
Court of First Instance of Manila, dismissing her complaint for
partition, accounting, reconveyance and damages and
holding, as not subject to reserve troncal, the properties
which her mother Filomena Races inherited in 1943 from
Filomena Legarda (Civil Case No. 73335). The facts are as
follows:
Benito Legarda y De la Paz, the son of Benito Legarda y
Tuason, died [Manila] on June 17, 1933. He was survived by
his widow, Filomena Races, and their seven children: four
daughters named Beatriz, Rosario, Teresa and Filomena and
three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y
Tuason were partitioned in three equal portions by his
daughters, Consuelo and Rita, and the heirs of his deceased
son Benito Legarda y De la Paz who were represented by
Benito F. Legarda.
Filomena Legarda y Races died intestate and without issue on
March 19, 1943. Her sole heiress was her mother, Filomena
Races Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit
adjudicating extrajudicially to herself the properties which she
inherited from her deceased daughter, Filomena Legarda. The
said properties consist of the following: 1wph1.t
(a) Savings deposit in the National City Bank
of New York with a credit balance of
P3,699.63.
(b) 1,429 shares of the Benguet
Consolidated Mining Company and a 1/7
interest in certain shares of the San Miguel
Brewery, Tuason & Legarda, Ltd., Philippine
Guaranty Company, Insular Life Assurance
Company and the Manila Times.
(c) 1/7 of the properties described in TCT
Nos. 80226, 80237 to 80243 (7 titles),
80260, 80261 and 57512 of the Manila
registry of deeds.
1/21st of the properties covered by TCT
Nos. 48164, 84714, 48201, 48202, 48205,
48203, 48206, 48160 and 48192 of the
Manila registry of deeds;
1/21st of the property described in TCT No.
4475 of the registry of deeds of Rizal, now
Quezon City; 1/14th of the property
described in TCT No. 966 of the registry of
deeds of Baguio;
1/7th of the lot and improvements at 127
Aviles described in TCT No. 41862 of the
Manila registry of deeds; 1/7th of the lots
and improvements at 181 San Rafael
describe in TCT Nos. 50495 and 48161 of
the Manila registry of deeds;
1/7th of the property described in TCT No.
48163 of the Manila registry of deeds
(Streets);
l/21st of the properties described in TCT
Nos. 48199 and 57551 of the Manila
registry of deeds (Streets and Estero):
2/21st of the property described in TCT No.
13458 of tile registry of deeds of T0ayabas.
These are the properties in litigation in this case. As a result of
the affidavit of adjudication, Filomena Races succeeded her
deceased daughter Filomena Legarda as co-owner of the
properties held proindiviso by her other six children.
Mrs. Legarda on March 6, 1953 executed two handwritten
Identical documents wherein she disposed of the properties,
which she inherited from her daughter, in favor of the
children of her sons, Benito, Alejandro and Jose (sixteen
grandchildren in all). The document reads: 1wph1.t
A mis hijos :
Dispongo que se reparta a todos mis nietos
hijos de Ben, Mandu y Pepito, los bienes
que he heredado de mi difunta hija
Filomena y tambien los acciones de la
Destileria La Rosario' recientemente
comprada a los hermanos Values Legarda.
De los bienes de mi hija Filomena se
deducira un tote de terreno que yo he
0donada a las Hijas de Jesus, en Guipit
La case No. 181 San Rafael, la cede a mi hijo
Mandu solo la casa; proque ella esta
construida sobre terreno de los hermanos
Legarda Races. 1wph1.t
(Sgd.)
FILOMEN
A ROCES
LEGARDA
6 Marzo 1953
During the period from July, 1958 to February, 1959 Mrs.
Legarda and her six surviving children partitioned the
properties consisting of the one-third share in the estate of
Benito Legarda y Tuason which the children inherited in
representation of their father, Benito Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her will was
admitted to probate as a holographic will in the order dated
July 16, 1968 of the Court of First Instance of Manila in Special
Proceeding No. 70878, Testate Estate of Filomena Races Vda.
de Legarda. The decree of probate was affirmed by the Court
of Appeals in Legarda vs. Gonzales, CA-G.R. No. 43480-R, July
30,1976.
In the testate proceeding, Beatriz Legarda Gonzales, a
daughter of the testatrix, filed on May 20, 1968 a motion to
exclude from the inventory of her mother's estate the
properties which she inherited from her deceased daughter,
Filomena, on the ground that said properties
are reservable properties which should be inherited by
Filomena Legarda's three sisters and three brothers and not
by the children of Benito, Alejandro and Jose, all surnamed
Legarda. That motion was opposed by the administrator,
Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs.
Gonzales filed on June 20, 1968 an ordinary civil action
against her brothers, sisters, nephews and nieces and her
mother's estate for the purpose of securing a declaration that
the said properties are reservable properties which Mrs.
Legarda could not bequeath in her holographic will to her
grandchildren to the exclusion of her three daughters and her
three sons (See Paz vs. Madrigal, 100 Phil. 1085).
As already stated, the lower court dismissed the action of
Mrs. Gonzales. ln this appeal under Republic Act No. 5440 she
contends in her six assignments of error that the lower court
erred in not regarding the properties in question as reservable
properties under article 891 of the Civil Code.
On the other hand, defendants-appellees in their six counter-
assignments of error contend that the lower court erred in
not holding that Mrs. Legarda acquired the estate of her
daughter Filomena] Legarda in exchange for her conjugal and
hereditary shares in the estate of her husband Benito Legarda
y De la Paz and in not holding that Mrs. Gonzales waived her
right to the reservable properties and that her claim is barred
by estoppel, laches and prescription.
The preliminary issue raised by the private respondents as to
the timeliness of Mrs. Gonzales' petition for review is a closed
matter. This Court in its resolution of December 16, 1971
denied respondents' motion to dismiss and gave due course
to the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can
be raised under undisputed facts. Since on the basis of the
stipulated facts the lower court resolved only the issue of
whether the properties in question are subject to reserva
troncal that is the only legal issue to be resolved in this
appeal.
The other issues raised by the defendants-appellees,
particularly those involving factual matters, cannot be
resolved in this appeal. As the trial court did not pass upon
those issues, there is no ruling which can be reviewed by this
Court.
The question is whether the disputed properties are
reservable properties under article 891 of the Civil Code,
formerly article 811, and whether Filomena Races Vda. de
Legarda could dispose of them in his will in favor of her
grandchildren to the exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what
she inherited from her daughter Filomena to the reservees
within the third degree and to bypass the reservees in
the second degree or should that inheritance automatically go
to the reservees in the second degree, the six children of Mrs.
Legarda?
As will hereinafter be shown that is not a novel issue or a
question of first impression. lt was resolved in Florentino vs.
Florentino, 40 Phil. 480. Before discussing the applicability to
this case of the doctrine in the Florentino case and other
pertinent rulings, it may be useful to make a brief discourse
on the nature of reserve troncal, also called lineal, familiar,
extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in
their five briefs in descanting on the nature of reserve
troncal which together with the reserva viudal and reversion
legal, was abolished by the Code Commission to prevent the
decedent's estate from being entailed, to eliminate the
uncertainty in ownership caused by the reservation (which
uncertainty impedes the improvement of the reservable
property) and to discourage the confinement of property
within a certain family for generations which situation
allegedly leads to economic oligarchy, and is incompatible
with the socialization of ownership.
The Code Commission regarded the reservas as remnants of
feudalism which fomented agrarian unrest. Moreover,
the reserves, insofar as they penalize legitimate relationship,
is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the
Code Commission, restored the reserve troncal, a legal
institution which, according to Manresa and Castan Tobenas
has provoked questions and doubts that are difficult to
resolve.
Reserva troncal is provided for in article 811 of the Spanish
Civil Code, now article 891, which reads: 1wph1.t
ART. 811. El ascendiente que heredare de su
descendiente bienes que este hubiese
adquirido por titulo lucrative de otro
ascendiente, o de un hermano, se halla
obligado a reservas los que hubiere
adquirido por ministerio de la ley en favor
de los parientes que eaten dentro del tercer
grade y pertenezcan a la linea de donde los
bienes proceden
ART. 891. The ascendant who inherits from
his descendant any property which the
latter may have acquired by gratuitous title
from another ascendant, or a brother or
sister, is obliged to reserve such property as
he may have acquired by operation of law
for the benefit of relatives who are within
the third degree and who belong to the line
from which said property came.
In reserve troncal (1) a descendant inherited or acquired by
gratuitous title property from an ascendant or from a brother
or sister; (2) the same property is inherited by another
ascendant or is acquired by him by operation of law from the
said descendant, and (3) the said ascendant should reserve
the said property for the benefit of relatives who are within
the third degree from the deceased descendant (prepositus)
and who belong to the line from which the said property
came.
So, three transmissions are involved: (I) a first transmission by
lucrative title (inheritance or donation) from an ascendant or
brother or sister to the deceased descendant; (2) a posterior
transmission, by operation of law (intestate succession or
legitime) from the deceased descendant (causante de la
reserve) in favor of another ascendant, the reservor
or reservista, which two transmissions precede the
reservation, and (3) a third transmissions of the same
property (in consequence of the reservation) from the
reservor to the reservees (reservatarios) or the relatives
within the third degree from the deceased descendant
belonging to the line of the first ascendant, brother or sister
of the deceased descendant (6 Castan Tobenas Derecho Civil,
Part l, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserve. Thus,
where one Bonifacia Lacerna died and her properties were
inherited by her son, Juan Marbebe, upon the death of Juan,
those lands should be inherited by his half-sister, to the
exclusion of his maternal first cousins. The said lands are not
reservable property within the meaning of article 811
(Lacerna vs. Vda. de Corcino, l l l Phil. 872).
The persons involved in reserve troncal are (1) the ascendant
or brother or sister from whom the property was received by
the descendant by lucrative or gratuitous title, (2) the
descendant or prepositus (prepositus) who received the
property, (3) the reservor (reservista) the other ascendant
who obtained the property from the (prepositus) by operation
of law and (4) the reserves (reservatario) who is within the
third degree from the prepositus and who belongs to the (line
o tronco) from which the property came and for whom the
property should be reserved by the reservor.
The reservees may be half-brothers and sisters (Rodriguez vs.
Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of
Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412).
Fourth degree relatives are not included (Jardin vs.
Villamayor, 72 Phil. 392).
The rationale of reserve troncal is to avoid "el peligro de que
bienes poseidos secularmente por una familia pasen
bruscamente a titulo gratuito a manos extraas por el azar de
los enlaces y muertes prematuras or impeder que, por un azar
de la vide personas extranas a una familia puedan adquirir
bienes que sin aquel hubieran quedado en ella (6 Castan
Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs.
Baldovino, 104 Phil. 1065).
An illustration of reserve troncal is found in Edroso vs. Sablan,
25 Phil. 295. ln that case, Pedro Sablan inherited two parcels
of land from his father Victorians. Pedro died in 1902, single
and without issue. His mother, Marcelina Edroso, inherited
from him the two parcels of land.
It was held that the land was reservable property in the hands
of Marcelina. The reservees were Pablo Sablan and Basilio
Sablan, the paternal uncles of Pedro Sablan, the prepositus.
Marcelina could register the land under the Torrens system in
her name but the fact that the land was reservable property
in favor of her two brothers-in-law, should they survive her,
should be noted in the title.
In another case, it appears that Maria Aglibot died intestate in
1906. Her one-half share of a parcel of conjugal land was
inherited by her daughter, Juliana Maalac. When Juliana
died intestate in 1920, said one-half share was inherited by
her father, Anacleto Maalac who owned the other one-half
portion.
Anacleto died intestate in 1942, survived by his second wife
and their six children. lt was held that the said one-half
portion was reservable property in the hands of Anacleto
Maalac and, upon his death, should be inherited by Leona
Aglibot and Evarista Aglibot, sisters of Maria and materna
aunts of Juliana Maalac, who belonged to the line from
which said one-half portion came (Aglibot vs. Maalac 114
Phil. 964).
Other illustrations of reserva troncal are found in Florentino
vs Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and
Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs.
Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs.
Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno
vs. Centeno 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil.
89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs.
Abille, CA 39 O.G. 1784.
The person from whom the degree should be reckoned is the
descendant, or the one at the end of the line from which the
property came and upon whom the property last revolved by
descent. He is called the prepositus(Cabardo vs. Villanueva. 44
Phil. 186, 190).
In the Cabardo case, one Cornelia Abordo inherited property
from her mother, Basilia Cabardo. When Cornelia died, her
estate passed to her father, Lorenzo Abordo. ln his hands, the
property was reservable property. Upon the death of Lorenzo,
the person entitled to the property was Rosa Cabardo, a
maternal aunt of Cornelia, who was her nearest relative
within the third degree.
First cousins of the prepositus are in the fourth degree and
are not reservees. They cannot even represent their parents
because representation is confined to relatives within the
third degree (Florentino vs. Florentino, 40 Phil. 480).
Within the third degree, the nearest relatives exclude the
more remote subject to the rule of representation. But the
representative should be within the third degree from
the prepositus (Padura vs. Baldovino, 104 Phil. 1065).
Reserva troncal contemplates legitimate relationship.
illegitimate relationship and relationship by affinity are
excluded.
Gratuitous title or titulo lucrativo refers to a transmission
wherein the recipient gives nothing in return such as
donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186,
189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360).
The reserva creates two resolutory conditions, namely, (1) the
death of the ascendant obliged to reserve and (2) the survival,
at the time of his death, of relatives within the third degree
belonging to the line from which the property came
(Sienes vs. E Esparcia l l l Phil. 349, 353).
The reservor has the legal title and dominion to the
reservable property but subject to the resolutory condition
that such title is extinguished if the reservor predeceased the
reservee. The reservor is a usufructuary of the reservable
property. He may alienate it subject to the reservation. The
transferee gets the revocable and conditional ownership of
the reservor. The transferee's rights are revoked upon the
survival of the reservees at the time of the death of the
reservor but become indefeasible when the reservees
predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349,
353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46
Phil. 664; Florentino vs. Florentino, 40 Phil. 480: Director of
Lands vs. Aguas, 63 Phil. 279.)
The reservor's title has been compared with that of the
vendee a retro in a pacta de retro sale or to a fideicomiso
conditional.
The reservor's alienation of the reservable property is subject
to a resolutory condition, meaning that if at the time of the
reservor's death, there are reservees, the transferee of the
property should deliver it to the reservees. lf there are no
reservees at the time of the reservor's death, the transferee's
title would become absolute. (Lunsod vs. Ortega, 46 Phil. 664;
Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil.
120).
On the other hand, the reserves has only an inchoate,
expectant or contingent right. His expectant right would
disappear if he predeceased the reservor. lt would become
absolute should the reservor predecease the reserves.
The reserves cannot impugn any conveyance made by the
reservor but he can require that the reservable character of
the property be recognized by the purchaser (Riosa vs. Rocha
48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs.
Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservee's right
to the reservable property is illegal for being a contract
regarding future inheritance (Velayo Bernardo vs. Siojo, 58
Phil. 89, 96).
And there is a dictum that the reservee's right is a real right
which he may alienate and dispose of conditionally. The
condition is that the alienation shall transfer ownership to the
vendee only if and when the reserves survives the reservor
(Sienes vs. Esparcia, 111 Phil. 349, 353). 1wph1.t holographic will to her sixteen grandchildren the reservable
The reservatario receives the property as a
conditional heir of the descendant
(prepositus) said property merely reverting
to the line of origin from which it had
temporarily and accidentally stayed during
the reservista's lifetime. The authorities are
all agreed that there being reservatarios
that survive the reservists, the latter must
be deemed to have enjoyed no more than a
than interest in the reservable property.
(J. J. B. L. Reyes in Cane vs. Director of
Lands, 105 Phil. l5.)
Even during the reservista's lifetime,
the reservatarios, who are the ultimate
acquirers of the property, can already assert
the right to prevent the reservista from
doing anything that might frustrate their
reversionary right, and, for this purpose,
they can compel the annotation of their
right in the registry of property even while
the (reservista) is alive (Ley Hipotecaria de
Ultramar, Arts. 168, 199; Edroso vs. Sablan,
25 Phil. 295).
This right is incompatible with the mere
expectancy that corresponds to the natural
heirs of the reservista lt is likewise clear that
the reservable property is no part of the
estate of the reservista who may not
dispose of them (it) by will, so long as there
are reservatarios existing (Arroyo vs.
Gerona, 58 Phil. 226, 237).
The latter, therefore, do not inherit from
the reservista but from the descendant
(prepositus) of whom the reservatarios are
the heirs mortis causa, subject to the
condition that they must survive
the reservista. (Sanchez Roman, Vol. VI
Tomo 2, p. 286; Manresa, Commentaries,
Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L.
Reyes in Padura vs. Baldovino, L-11960,
December 27, 1958, 104 Phil. 1065).
Hence, upon the reservista's death, the reservatario nearest
to the prepositus becomes, "automatically and by operation
of law, the owner of the reservable property." (Cane vs.
Director of Lands, 105 Phil. l5.)
In the instant case, the properties in question were
indubitably reservable properties in the hands of Mrs.
Legarda. Undoubtedly, she was a reservor. The reservation
became a certainty when at the time of her death the
reservees or relatives within the third degree of
the prepositus Filomena Legarda were living or they survived
Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as
reservor, could convey the reservable properties by will
or mortis causa to the reservees within the third degree (her
sixteen grandchildren) to the exclusion of the reservees in
the second degree, her three daughters and three sons. As
indicated at the outset, that issue is already res
judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her
properties which she had inherited from her daughter
Filomena because the reservable properties did not form part
of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The
reservor cannot make a disposition mortis causa of the
reservable properties as long as the reservees survived the
reservor.
As repeatedly held in the Cano and Padura cases, the
reservees inherit the reservable properties from
the prepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties
should be inherited by all the nearest relatives within the
third degree from the prepositus who in this case are the six
children of Mrs. Legarda. She could not select the reservees
to whom the reservable property should be given and deprive
the other reservees of their share therein.
To allow the reservor in this case to make a testamentary
disposition of the reservable properties in favor of the
reservees in the third degree and, consequently, to ignore the
reservees in the second degree would be a glaring violation of
article 891. That testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the
doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar
case, where it was ruled: 1wph1.t
Reservable property left, through a will or
otherwise, by the death of ascendant
(reservista) together with his own property
in favor of another of his descendants as
forced heir, forms no part of the latter's
lawful inheritance nor of the legitime, for
the reason that, as said property continued
to be reservable, the heir receiving the
same as an inheritance from his ascendant
has the strict obligation of its delivery to the
relatives, within the third degree, of the
predecessor in interest (prepositus), without
prejudicing the right of the heir to an
aliquot part of the property, if he has at the
same time the right of
a reservatario (reserves).
ln the Florentino case, it appears that Apolonio Florentino II
and his second wife Severina Faz de Leon begot two children,
Mercedes and Apolonio III. These two inherited properties
from their father. Upon Apolonio III death in 1891, his
properties were inherited by his mother, Severina, who died
in 1908. ln her will, she instituted her daughter Mercedes as
heiress to all her properties, including those coming from her
deceased husband through their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first
wife Antonia Faz de Leon and the descendants of the
deceased children of his first marriage, sued Mercedes
Florentino for the recovery of their share in the reservable
properties, which Severina de Leon had inherited from
Apolonio III which the latter had inherited from his father
Apolonio II and which Severina willed to her daughter
Mercedes.
Plaintiff's theory was that the said properties, as reservable
properties, could not be disposed of in Severina's will in favor
of Mercedes only. That theory was sustained by this Court.
It was held that the said properties, being reservable
properties, did not form part of Severina's estate and could
not be inherited from her by her daughter Mercedes alone.
As there were seven reservees, Mercedes was entitled, as a
reserves, to one-seventh of the properties. The other six
sevenths portions were adjudicated to the other six
reservees.
Under the rule of stare decisis et non quieta movere, we are
bound to follow in this case the doctrine of
the Florentino case. That doctrine means that as long as
during the reservor's lifetime and upon his death there are
relatives within the third degree of the prepositus regardless
of whether those reservees are common descendants of the
reservor and the ascendant from whom the property came,
the property retains its reservable character. The property
should go to the nearest reservees. The reservor cannot, by
means of his will, choose the reserves to whom the
reservable property should be awarded.
The alleged opinion of Sanchez Roman that there is
no reserva troncal when the only relatives within the third
degree are the common descendants of the predeceased
ascendant and the ascendant who would be obliged to
reserve is irrelevant and sans binding force in the light of the
ruling in the Florentino case.
It is contended by the appellees herein that the properties in
question are not reservable properties because only relatives
within the third degree from the paternal line have survived
and that when Mrs. Legarda willed the said properties to her
sixteen grandchildren, who are third-degree relatives of
Filomena Legarda and who belong to the paternal line, the
reason for the reserva troncal has been satisfied: "to prevent
persons outside a family from securing, by some special
accident of life, property that would otherwise have remained
therein".
That same contention was advanced in the Florentino case
where the reservor willed the reservable properties to her
daughter, a full-blood sister of the prepositus and ignored the
other six reservors, the relatives of the half-blood of
the prepositus.
In rejecting that contention, this Court held that the
reservable property bequeathed by the reservor to her
daughter does not form part of the reservor's estate nor of
the daughter's estate but should be given to all the seven
reservees or nearest relatives of the prepositus within the
third degree.
This Court noted that, while it is true that by giving the
reservable property to only one reserves it did not pass into
the hands of strangers, nevertheless, it is likewise true that
the heiress of the reservor was only one of the reservees and
there is no reason founded upon law and justice why the
other reservees should be deprived of their shares in the
reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda
could not dispose of in her will the properties in question
even if the disposition is in favor of the relatives within the
third degree from Filomena Legarda. The said properties, by
operation of Article 891, should go to Mrs. Legarda's six
children as reservees within the second degree from Filomena
Legarda.
It should be repeated that the reservees do not inherit from
the reservor but from the reservor but from the prepositus, of
whom the reservees are the heirs mortis causa subject to the
condition that they must survive the reservor (Padura vs.
Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).
The trial court said that the disputed properties lost their
reservable character due to the non-existence of third-degree
relatives of Filomena Legarda at the time of the death of the
reservor, Mrs. Legarda, belonging to the Legarda family,
"except third-degree relatives who pertain to both" the
Legarda and Races lines.
That holding is erroneous. The reservation could have been
extinguished only by the absence of reservees at the time of
Mrs. Legarda's death. Since at the time of her death, there
were (and still are) reservees belonging to the second and
third degrees, the disputed properties did not lose their
reservable character. The disposition of the said properties
should be made in accordance with article 891 or the rule on
reserva troncal and not in accordance with the reservor's
holographic will. The said properties did not form part of Mrs.
Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4).
WHEREFORE, the lower court's decision is reversed and set
aside. lt is hereby adjudged that the properties inherited by
Filomena Roces Vda. de Legarda from her daughter Filomena
Legarda, with all the fruits and accessions thereof, are
reservable properties which belong to Beatriz, Rosario,
Teresa, Benito, Alejandro and Jose, all surnamed Legarda y
Roces, as reservees. The shares of Rosario L. Valdes and
Benito F. Legarda, who died in 1969 and 1973, respectively,
should pertain to their respective heirs. Costs against the
private respondents.

SO ORDERED.

G.R. No. 6878 September 13, 1913
MARCELINA EDROSO, petitioner-appellant,
vs.
PABLO and BASILIO SABLAN, opponents-appellees.
Francisco Dominguez for appellant.
Crispin Oben for appellees.
ARELLANO, C.J.:
The subject matter of this appeal is the registration of certain
property classified as required by law to be reserved.
Marcelina Edroso applied for registration and issuance of title
to two parcels of land situated in the municipality of
Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and
63 centares, and the other 1 hectare 6 ares and 26 centares.
Two applications were filed, one for each parcel, but both
were heard and decided in a single judgment.
Marcelina Edroso was married to Victoriano Sablan until his
death on September 22, 1882. In this marriage they had a son
named Pedro, who was born on August 1, 1881, and who at
his father's death inherited the two said parcels. Pedro also
died on July 15, 1902, unmarried and without issue and by
this decease the two parcels of land passed through
inheritance to his mother, Marcelina Edroso. Hence the
hereditary title whereupon is based the application for
registration of her ownership.
Two legitimate brothers of Victoriano Sablan that is, two
uncles german of Pedro Sablan appeared in the case to
oppose the registration, claiming one of two things: Either
that the registration be denied, "or that if granted to her the
right reserved by law to the opponents be recorded in the
registration of each parcel." (B. of E., 11, 12.)
The Court of Land Registration denied the registration and the
application appealed through a bill of exceptions.
Registration was denied because the trial court held that the
parcels of land in question partake of the nature of property
required by law to be reserved and that in such a case
application could only be presented jointly in the names of
the mother and the said two uncles of Pedro Sablan.
The appellant impugns as erroneous the first idea advanced
(second assignment of error), and denies that the land which
are the subject matter of the application are required by law
to be reserved a contention we regard as indefensible.
Facts: (1) The applicant acquired said lands from her
descendant Pedro Sablan by inheritance; (2) Pedro Sablan had
acquired them from his ascendant Victoriano Sablan, likewise
by inheritance; (3) Victoriano Sablan had likewise acquired
them by inheritance from his ascendants, Mariano Sablan and
Maria Rita Fernandez, they having been adjudicated to him in
the partition of hereditary property had between him and his
brothers. These are admitted facts.
A very definite conclusions of law is that the hereditary title is
one without a valuable consideration [gratuitous title], and it
is so characterized in article 968 of the Civil Code, for he who
acquires by inheritance gives nothing in return for what he
receives; and a very definite conclusion of law also is that the
uncles german are within the third degree of blood
relationship.
The ascendant who inherits from his descendant
property which the latter acquired without a
valuable consideration from another ascendant, or
from a brother or sister, is under obligation to
reserve what he has acquired by operation of law for
the relatives who are within the third degree and
belong to the line whence the property proceeded.
(Civil Code, art. 811.)
Marcelina Edroso, ascendant of Pedro Sablan, inherited from
him these two parcels of land which he had acquired without
a valuable consideration that is, by inheritance from
another ascendant, his father Victoriano. Having acquired
them by operation of law, she is obligated to relatives within
the third degree and belong to the line of Mariano Sablan and
Maria Rita Fernandez, whence the lands proceeded. The trial
court's ruling that they partake of the nature property
required by law to be reserved is therefore in accordance with
the law.
But the appellant contends that it is not proven that the two
parcels of land in question have been acquired by operation
of law, and that only property acquired without a valuable
consideration, which is by operation of law, is required by law
to reserved.
The appellees justly argue that this defense was not alleged
or discussed in first instance, but only herein. Certainly, the
allegation in first instance was merely that "Pedro Sablan
acquired the property in question in 1882, before the
enforcement of the Civil Code, which establishes the alleged
right required by law to be reserved, of which the opponents
speak; hence, prescription of the right of action; and finally,
opponents' renunciation of their right, admitting that it
existed and that they had it" (p. 49).
However that be, it is not superflous to say, although it may
be unnecessary, that the applicant inherited the two parcels
of land from her son Pedro, who died "unmarried and without
issue." The trial court so held as a conclusion of fact, without
any objection on the appellant's part. (B. of E., 17, 20.) When
Pedro Sablan died without issue, his mother became his heir
by virtue of her right to her son's legal portion under article
935 of the Civil Code:
In the absence of legitimate children and
descendants of the deceased, his ascendants shall
from him, to the exclusion of collaterals.
The contrary could only have occurred if the heiress had
demonstrated that any of these lands had passed into her
possession by free disposal in her son's will; but the case
presents no testamentary provision that demonstrate any
transfer of property from the son to the mother, not by
operation of law, but by her son's wish. The legal presumption
is that the transfer of the two parcels of land was abintestate
or by operation of law, and not by will or the wish of the
predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the
provision of article 811 of the Civil Code have therefore been
fully complied with.
If Pedro Sablan had instituted his mother in a will as the
universal heiress of his property, all he left at death would not
be required by law to be reserved, but only what he would
have perforce left her as the legal portion of a legitimate
ascendant.
The legal portion of the parents or ascendants is
constituted by one-half of the hereditary estate of
 the children and descendants. The latter may
unrestrictedly dispose of the other half, with the
exception of what is established in article 836. (Civil
Code, art. 809.)
In such case only the half constituting the legal portion would
be required by law to be reserved, because it is what by
operation of law could full to the mother from her son's
inheritance; the other half at free disposal would not have to
be reserved. This is all that article 811 of the Civil Code says.
No error has been incurred in holding that the two parcels of
land which are the subject matter of the application are
required by law to be reserved, because the interested party
has not proved that either of them became her inheritance
through the free disposal of her son.
Proof testate succession devolves upon the heir or heiress
who alleges it. It must be admitted that a half of Pedro
Sablan's inheritance was acquired by his mother by operation
of law. The law provides that the other half is also presumed
to be acquired by operation of law that is, by intestate
succession. Otherwise, proof to offset this presumption must
be presented by the interested party, that is, that the other
half was acquired by the man's wish and not by operation of
law.
Nor is the third assignments of error admissible that the
trial court failed to sustain the renunciation of the right
required by law to be reserved, which the applicant attributes
to the opponents. Such renunciation does not appear in the
case. The appellant deduces it from the fact that the
appellees did not contradict the following statement of hers
at the trial:
The day after my brother-in-law Pablo Sablan dies and was
buried, his brother came to my house and said that those rice
lands were mine, because we had already talked about
making delivery of them. (p. 91).
The other brother alluded to is Basilio Sablan, as stated on
page 92. From the fact that Basilio Sablan said that the lands
belong to the appellant and must be delivered to her it
cannot be deduced that he renounced the right required by
law to be reserved in such lands by virtue of the provisions of
article 811 of the Civil Code, for they really belong to her and
must be delivered to her.
The fourth assignments of error set up the defense of
prescription of the right of action. The appellant alleges
prescription of the opponent's right of action for requiring
fulfillment of the obligation they attribute to her recording in
the property registry the right required by law to be reserved,
in accordance with the provisions of the Mortgage Law; and
as such obligation is created by law, it prescribed in the time
fixed in No. 2 of section 43 of Act No. 190. She adds:
"Prescription of the right alleged to the reserved by force of
law has not been invoked." (Eight allegation.)
The appellant does not state in her brief what those
provisions of the Mortgage Law are. Nor did she do so in first
instance, where she says only the following, which is quoted
from the record: "I do not refer to the prescription of the right
required by law to be reserved in the property; I refer to the
prescription of the right of action of those who are entitled to
the guaranty of that right for seeking that guaranty, for those
who are entitled to that right the Mortgage Law grants a
period of time for recording it in the property registry, if I
remember correctly, ninety days, for seeking entry in the
registry; but as they have not exercised that right of action,
such right of action for seeking here that it be recorded has
prescribed. The right of action for requiring that the property
be reserved has not prescribed, but the right of action for
guaranteeing in the property registry that this property is
required by law to be reserved" (p. 69 of the record).
The appellees reply: It is true that their right of action has
prescribed for requiring the applicant to constitute the
mortgage imposed by the Mortgage Law for guaranteeing the
effectiveness of the required by law to be reserved; but
because that right of action has prescribed, that property has
not been divested of its character of property required by law
to be reserved; that it has such character by virtue of article
8112 of the Civil Code, which went into effect in the
Philippine in December, 1889, and not by virtue of the
Mortgage Law, which only went into effect in the country by
law of July 14, 1893; that from December, 1889, to July, 1893,
property which under article 811 of the Civil Code acquired
the character of property reserved by operation of law was
such independently of the Mortgage Law, which did not yet
form part of the positive legislation of the country; that
although the Mortgage Law has been in effect in the country
since July, 1893, still it has in no way altered the force of
article 811 of the Civil Code, but has operated to reinforce the
same merely by granting the right of action to the persons in
whose favor the right is reserved by operation of law to
require of the person holding the property a guaranty in the
form of a mortgage to answer for the enforcement, in due
time, of the right; that to lose the right of action to the
guaranty is not to lose the right itself; that the right reserved
is the principal obligation and the mortgage the accessory
obligation, and loss of the accessory does not mean loss of
the principal. (Fifth and sixth allegations.)
The existence of the right required by law to be reserved in
the two parcels of land in question being indisputable, even
though it be admitted that the right of action which the
Mortgage Law grants as a guaranty of final enforcement of
such right has prescribed, the only thing to be determined by
this appeal is the question raised in the first assignment of
error, that is, how said two parcels of land can and ought to
be registered, not in the property registry newly established
by the Mortgage Law, but in the registry newly organized by
Act No. 496. But as the have slipped into the allegations
quoted some rather inexact ideas that further obscure such
an intricate subject as this of the rights required to be
reserved in Spanish-Philippine law, a brief disgression on the
most essential points may not be out of place here.
The Mortgage Law of July 14, 1893, to which the appellees
allude, is the amended one of the colonies, not the first
enforced in the colonies and consequently in the Philippines.
The preamble of said amended Mortgage Law states:
The Mortgage Law in force in Spain for thirty years
went into effect, with the modifications necessary
for its adaptation, in the Antilles on May 1, 1880, and
in the Philippines on December 1, 1889, thus
commencing in those regions the renovation of the
law on real property, and consequently of agrarian
credit.
The Civil Code went into effect in the Philippines in the same
year, 1889, but on the eight day.
Two kinds of property required by law to be reserved are
distinguished in the Civil Code, as set forth in article 968
thereof, where it says:
Besides the reservation imposed by article 811, the widow or
widower contracting a seconds marriage shall be obliged to
set apart for the children and descendants of the first
marriage the ownership of all the property he or she may
have required from the deceased spouse by will, by intestate
succession, by gift, or other transfer without a valuable
consideration."
The Mortgage Law of Spain and the first law that went into
effect in the Philippines on December 1, 189, do not contain
any provision that can be applied to the right reserved by
article 811 of the Civil Code, for such right is a creation of the
Civil Code. In those laws appear merely the provisions
intended to guarantee the effectiveness of the right in favor
of the children of the first marriage when their father or
mother contracts a second marriage. Nevertheless, the
holding of the supreme court of Spain, for the first time set
forth in the decision on appeal of November 8, 1894, has
been reiterated:
advantage over the law of Spain, to wit, article 199, which
read thus:
The special mortgage for guaranteeing the right
reserved by article 811 of the Civil Code can only be
required by the relatives in whose favor the property
is to be reserved, if they are of age; if minors, it will
be require by the person who should legally
represent them. In either case the right of the
persons in whose favor the property must be
reserved will be secured by the same requisites as
set forth in the preceding article (relative to the right
reserved by article 968 of the Civil Code), applying to
the person obligated to reserve the right the
provisions with respect to the father.
In article 168 of the same law the new subsection 2 is added
in connection with article 199 quoted, so that said article 168
reads as thus:

That while the provisions of articles 977 and 978 of Legal mortgage is established:
the Civil Code that tend to secure the right required
to be reserved in the property refer especially to the 1. . . .
spouses who contract second or later marriages,
they do not thereby cease to be applicable to the
2. In favor of the relatives to whom article 811 of the
right establishes in article 811, because, aside from
Civil Code refers, for the property required to be
the legal reason, which is the same in both cases,
reserved, upon the property of the person obliged to
such must be the construction from the important
reserve it.
and conclusive circumstance that said provisions are
set forth in the chapter that deals with inheritances
This being admitted, and admitted also that both the litigating
in common, either testate or intestate, and because
parties agree that the period of ninety days fixed for the right
article 968, which heads the section that deals in
of action to the guaranty, that is, to require the mortgage that
general with property required by law to be
guarantees the effectiveness of the right required by law to
reserved, makes reference to the provisions in article
be reserved, has prescribed, it is necessary to lay down a
811; and it would consequently be contradictory to
principle in this matter. Now it should by noted that such
the principle of the law and of the common nature of
action has not prescribed, because the period of ninety days
said provisions not to hold them applicable to that
fixed by the Mortgage Law is not for the exercise of the right
right.
of action of the persons entitled to the right reserved, but for
the fulfillment of the obligation of the person who must make
Thus it was again stated in a decision on appeal, December
the reservation.
30, 1897, that: "As the supreme court has already declared,
the guaranties that the Code fixes in article 977 and 978 for
Article 191 of the reads thus: "If ninety days pass without the
the rights required by law to the reserved to which said
father's instituting in court the proceeding to which the
articles refer, are applicable to the special right dealt with in
foregoing article refers, the relatives themselves may demand
article 811, because the same principle exists and because of
fulfillment, etc., . . . applying, according to said article 199, to
the general nature of the provisions of the chapter in which
the person obligated to reserve the right the provisions with
they are found."
respect to the father."
From this principle of jurisprudence it is inferred that if from
Article 203 of the regulation for the application of the
December, 1889, to July, 1893, a case had occurred of a right
Mortgage Law says: "In the case of article 199 of the law the
required to be reserved by article 811, the persons entitled to
proceedings to which article 190 thereof refers will be
such right would have been able to institute, against the
instituted within the ninety days succeeding the date of the
ascendant who must make the reservation, proceedings for
date of the acceptation of the inheritance by the person
the assurance and guaranty that article 977 and 978 grant to
obligated to reserve the property; after this period has
the children of a first marriage against their father or mother
elapsed, the interested parties may require the institution of
who has married again. The proceedings for assurance, under
such proceedings, if they are of age; and in any other case,
article 977; are: Inventory of the property subject to the right
their legal representatives."
reserved, annotation in the property registry of such right
reserved in the real property and appraisal of the personal
property; and the guaranty, under article 978, is the Thus it clearly appears that the lapse of the ninety days is not
assurance by mortgage, in the case of realty, of the value of the expiration by prescription of the period for the right must
what is validly alienated. be reserved, but really the commencement thereof, enables
them to exercise it at any time, since no limits is set in the
law. So, if the annotation of the right required by law to be
But since the amended Mortgage Law went into effect by law
reserved in the two parcels of land in question must be made
of July 14, 1893, in the Philippines this is not only a principle
in the property registry of the Mortgage Law, the persons
of jurisprudence which may be invoked for the applicability to
entitled to it may now institute proceedings to that end, and
the right reserved in article 811 of the remedies of assurance
an allegation of prescription against the exercise of such right
and guaranty provided for the right reserved in article 968,
of action cannot be sustained.
but there is a positive provision of said law, which is an
Since the applicant confesses that she does not allege
prescription of the right of action for requiring that the
property be reserved, for she explicitly so stated at the trial,
and as the case presents no necessity for the proceedings that
should be instituted in accordance with the provisions of the
Mortgage Law, this prescription of the right of action cannot
take place, because such right of action does not exist with
reference to instituting proceedings for annotation in the
registry of Act No. 496 of the right to the property required by
law to be reserved. It is sufficient, as was done in the present
case, to intervene in the registration proceedings with the
claim set up by the two opponents for recording therein the
right reserved in either parcel of land.
Now comes the main point in the appeal. The trial court
denied the registration because of this finding set forth in its
decision:
Absolute title to the two parcels of land undoubtedly
belongs to the applicant and the two uncles of the
deceased Pedro Sablan, and the application cannot
be made except in the name of all of them in
common. (B. of E., p. 20.)
It must be remembered that absolute title consists of the
rights to use, enjoy, dispose of, and recover. The person who
has in himself all these rights has the absolute or complete
ownership of the thing; otherwise, the person who has the
right to use and enjoy will have the usufruct, and the person
who has the rights of disposal and recovery the direct title.
The person who by law, act, or contract is granted the right of
usufruct has the first two rights or using an enjoying, and then
he is said not to have the fee simple that is, the rights of
disposal and recovery, which pertain to another who, after
the usufruct expires, will come into full ownership.
The question set up in the first assignment of error of the
appellant's brief is this:
What are the rights in the property of the person
who holds it subject to the reservation of article 811
of the Civil Code?
There are not lacking writers who say, only those of a
usufructuary, the ultimate title belonging to the person in
whose favor the reservation is made. If that were so, the
person holding the property could not apply for registration
of title, but the person in whose favor it must be reserved,
with the former's consent. This opinion does not seem to be
admissible, although it appears to be supported by decisions
of the supreme court of Spain of May 21, 1861, and June 18,
1880, prior to the Civil Code, and of June 22, 1895, somewhat
subsequent to the enforcement thereof.
Another writer says: "This opinion only looks at two salient
points the usufruct and the fee simple; the remaining
features of the arrangement are not perceived, but become
obscure in the presence of that deceptive emphasis which
only brings out two things: that the person holding the
property will enjoy it and that he must keep what he enjoys
for other persons." (Manresa, VII, 189.)
In another place he says: "We do not believe that the third
opinion can now be maintained that is, that the surviving
spouse (the person obliged by article 968 to make the
reservation) can be regarded as a mere usufructuary and the
descendants immediately as the owner; such theory has no
serious foundation in the Code." (Ibid., 238.)
The ascendants who inherits from a descendants, whether by
the latter's wish or by operation of law, requires the
inheritance by virtue of a title perfectly transferring absolute
ownership. All the attributes of the right of ownership belong
to him exclusively use, enjoyment, disposal and recovery.
This absolute ownership, which is inherent in the hereditary
title, is not altered in the least, if there be no relatives within
the third degree in the line whence the property proceeds or
they die before the ascendant heir who is the possessor and
absolute owner of the property. If there should be relatives
within the third degree who belong to the line whence the
property proceeded, then a limitation to that absolute
ownership would arise. The nature and scope of this
limitation must be determined with exactness in order not to
vitiate rights that the law wishes to be effective. The opinion
which makes this limitation consist in reducing the ascendant
heir to the condition in of a mere usufructuary, depriving him
of the right of disposal and recovery, does not seem to have
any support in the law, as it does not have, according to the
opinion that he has been expressed in speaking of the rights
of the father or mother who has married again. There is a
marked difference between the case where a man's wish
institutes two persons as his heirs, one as usufructuary and
the other as owner of his property, and the case of the
ascendant in article 811 or of the father or mother in article
968. In the first case, there is not the slightest doubt that the
title to the hereditary property resides in the hereditary
owner and he can dispose of and recover it, while the
usufructuary can in no way perform any act of disposal of the
hereditary property (except that he may dispose of the right
of usufruct in accordance with the provisions of article 480 of
the Civil Code), or any act of recovery thereof except the
limited one in the form prescribed in article 486 of the Code
itself, because he totally lacks the fee simple. But the
ascendants who holds the property required by article 811 to
be reserved, and the father of mother required by article 986
to reserve the right, can dispose of the property they might
itself, the former from his descendant and the latter from his
of her child in first marriage, and recover it from anyone who
may unjustly detain it, while the persons in whose favor the
right is required to be reserved in either case cannot perform
any act whatsoever of disposal or of recovery.
Article 975 states explicitly that the father or mother required
by article 9687 to reserve the right may dispose of the
property itself:
Alienation of the property required by law to be
reserved which may be made by the surviving
spouse after contracting a second marriage shall be
valid only if at his or her death no legitimate children
or descendants of the first marriage survive, without
prejudice to the provisions of the Mortgage of Law.
It thus appears that the alienation is valid, although not
altogether effective, but under a condition subsequent, to
wit: "If at his or her death no legitimate children or
descendants of the first marriage survive."
If the title did not reside in the person holding the property to
be reserved, his alienation thereof would necessarily be null
and void, as executed without a right to do so and without a
right which he could transmit to the acquirer. The law says
that the alienation subsists (to subject is to continue to exist)
"without prejudice to the provisions of the Mortgage Law."
Article 109 of this Law says:
The possessor of property subject to conditions
subsequent that are still pending may mortgage or
alienate it, provided always that he preserve the
 right of the parties interested in said conditions by
expressly reserving that right in the registration.
In such case, the child or legitimate descendants of the first
marriage in whose favor the right is reserved cannot impugn
the validity of the alienation so long as the condition
subsequent is pending, that is, so long as the remarried
spouse who must reserve the right is alive, because it might
easily happen that the person who must reserve the right
should outlive all the person in whose favor the right is
reserved and then there would be no reason for the condition
subsequent that they survive him, and, the object of the law
having disappeared, the right required to be reserved would
disappear, and the alienation would not only be valid but also
in very way absolutely effective. Consequently, the alienation
is valid when the right required by law to be reserved to the
children is respected; while the effects of the alienation
depend upon a condition, because it will or will not become
definite, it will continue to exist or cease to exist, according to
circumstances. This is what the law establishes with reference
to the reservation of article 968, wherein the legislator
expressly directs that the surviving spouse who contracts a
second marriage shall reserve to the children or descendants
of the first marriage ownership. Article 811 says nothing more
than that the ascendants must make the reservation.
Manresa, with his recognized ability, summarizes the subject
under the heading, "Rights and obligations during the
existence of the right required by law to be reserved," in
these words:
During the whole period between the constitution in legal
form of the right required by law to be reserved and the
extinction thereof, the relatives within the third degree, after
the right that in their turn may pertain to them has
been assured, have only an expectation, and therefore they
do not even have the capacity to transmit that expectation to
their heirs.
The ascendant is in the first place a usufructuary who should
use and enjoy the things according to their nature, in the
manner and form already set forth in commenting upon the
article of the Code referring to use and usufruct.
But since in addition to being the usufructuary he is, even
though conditionally, the owner in fee simple of the property,
he can dispose of it in the manner provided in article 974 and
976 of the same Code. Doubt arose also on this point, but
the Direccion General of the registries, in an opinion of June
25, 1892, declared that articles 974 and 975, which are
applicable by analogy, for they refer to property reserved by
law, reveal in the clearest manner the attitude of the
legislator on this subject, and the relatives with the third
degree ought not to be more privileged in the right reserved
in article 811 than the children in the right reserved by article
975, chiefly for the reason that the right required to be
reserved carries with it a condition subsequent, and the
property subject to those conditions can validly be alienated
in accordance with article 109 of the Mortgage Law, such
alienation to continue, pending fulfillment of the condition."
(Civil Code, VI, 270.)
Another commentator corroborates the foregoing in every
way. He says:
The ascendants acquires that property with a
condition subsequent, to wit, whether or not there
exists at the time of his death relatives within the
third degree of the descendants from whom they
inherit in the line whence the property proceeds. If
such relatives exist, they acquire ownership of the
property at the death of the ascendants. If they do
not exist, the ascendants can freely dispose thereof.
If this is true, since the possessor of property subject
to conditions subsequent can alienate and encumber
it, the ascendants may alienate the property
required by law to be reserved, but he will alienate
what he has and nothing more because no one can
give what does not belong to him, and the acquirer
will therefore receive a limited and revocable title.
The relatives within the third degree will in their turn
have an expectation to the property while the
ascendant lives, an expectation that cannot be
transmitted to their heirs, unless these are also
within the third degree. After the person who is
required by law to reserve the right has died, the
relatives may rescind the alienation of the realty
required by law to be reserved and they will
complete ownership, in fee simple, because the
condition and the usufruct have been terminated by
the death of the usufructuary. (Morell, Estudios
sobre bienes reservable, 304, 305.)
The conclusion is that the person required by article 811 to
reserve the right has, beyond any doubt at all, the rights of
use and usufruct. He has, moreover, for the reasons set forth,
the legal title and dominion, although under a condition
subsequent. Clearly he has, under an express provision of the
law, the right to dispose of the property reserved, and to
dispose of is to alienate, although under a condition. He has
the right to recover it, because he is the one who possesses
or should possess it and have title to it, although a limited and
revocable one. In a word, the legal title and dominion, even
though under a condition, reside in him while he lives. After
the right required by law to be reserved has been assured, he
can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in
whose favor of the right is reserved cannot dispose of the
property, first because it is no way, either actually,
constructively or formally, in their possession; and, moreover,
because they have no title of ownership or of the fee simple
which they can transmit to another, on the hypothesis that
only when the person who must reserve the right should die
before them will they acquire it, thus creating a fee simple,
and only then will they take their place in the succession of
the descendants of whom they are relatives within the third
degree, that it to say, a second contingent place in said
legitimate succession in the fashion of aspirants to a possible
future legacy. If any of the persons in whose favor the right is
reserved should, after their rights has been assured in the
registry, dare to dispose of even nothing more than the fee
simple of the property to be reserved his act would be null
and void, for, as was definitely decided in the decision on
appeal of December 30, 1897, it is impossible to determine
the part "that might pertain therein to the relative at the time
he exercised the right, because in view of the nature and
scope of the right required by law to be reserved the extent
of his right cannot be foreseen, for it may disappear by his
dying before the person required to reserve it, just as may
even become absolute should that person die."
Careful consideration of the matter forces the conclusion that
no act of disposal inter vivos of the person required by law to
reserve the right can be impugned by him in whose favor it is
reserved, because such person has all, absolutely all, the
rights inherent in ownership, except that the legal title is
burdened with a condition that the third party acquirer may
ascertain from the registry in order to know that he is
acquiring a title subject to a condition subsequent. In
conclusion, it seems to us that only an act of disposal mortis
causa in favor of persons other than relatives within the third
degree of the descendants from whom he got the property to
be reserved must be prohibited to him, because this alone
has been the object of the law: "To prevent persons outside a
family from securing, by some special accident of life,
property that would otherwise have remained therein."
(Decision of December 30, 1897.)
after a fixed period, a thing much more certain and to be
expected than the purely contingent expectation of the
person in whose favor is reserved a right to inherit some day
what another has inherited. The purpose of the law would be
defeated in not applying to the person who must make the
reservation the provision therein relative to the vendee
under pacto de retracto, since the argument in his favor is the
more power and conclusive; ubi eadem ratio, eadem legis
dispositivo.

Practically, even in the opinion of those who reduce the Therefore, we reverse the judgment appealed from, and in
person reserving the right to the condition of a mere lieu thereof decide and declare that the applicant is entitled
usufructuary, the person in whose favor it must be reserved to register in her own name the two parcels of land which are
cannot attack the alienation that may be absolutely made of the subject matter of the applicants, recording in the
the property the law requires to be reserved, in the present registration the right required by article 811 to be reserved to
case, that which the appellant has made of the two parcels of either or both of the opponents, Pablo Sablan and Basilio
land in question to a third party, because the conditional Sablan, should they survive her; without special findings as to
alienation that is permitted her is equivalent to an alienation costs.
of the usufruct, which is authorized by article 480 of the Civil
Code, and, practically, use and enjoyment of the property
required by law to be reserved are all that the person who
must reserve it has during his lifetime, and in alienating the
usufruct all the usefulness of the thing would be transmitted
in an incontrovertible manner. The question as to whether or
not she transmits the fee simple is purely academic, sine re,
for it is not real, actual positive, as is the case of the
institution of two heirs, one a usufructuary and the other the
owner, by the express wish of the predecessor in interest.

If the person whom article 811 requires to reserve the right

has all the rights inherent in ownership, he can use, enjoy,
dispose of and recover it; and if, in addition to usufructuary,
he is in fact and in law the real owner and can alienate it,
although under a condition, the whole question is reduced to
the following terms:

Cannot the heir of the property required by law to reserved,

merely because a condition subsequent is annexed to his right
of disposal, himself alone register the ownership of the
property he has inherited, when the persons in whose favor
the reservation must be made degree thereto, provided that
the right reserved to them in the two parcels of land be
recorded, as the law provides?

It is well known that the vendee under pacto de

retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights

and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also
register this same title after he has once acquired it. This title,
however, in its attribute of being disposable, has a condition
subsequent annexed that the alienation the purchaser may
make will be terminated, if the vendor should exercise the
right granted him by article 1507, which says:

Conventional redemption shall take place when the vendor

reserves to himself the right to recover the thing sold, with
the obligation to comply with article 1518, and whatever
more may have been agreed upon," that is, if he recovers the
thing sold by repaying the vendee the price of the sale and
other expenses. Notwithstanding this condition subsequent, it
is a point not at all doubtful now that the vendee may register
his title in the same way as the owner of a thing mortgaged
that is to say, the latter with the consent of his creditor and
the former with the consent of the vendor. He may alienate
the thing bought when the acquirer knows by well from the
title entered in the registry that he acquires a title revocable
THIRD DIVISION propriedad de Gabriel Bernardino; con el SE
con propriedad de Zacarias Najorda y
Alejandro Najorda; por el SO con
THE HEIRS OF MARCELINO G.R. No. 169454 propriedad de Geminiano Mendoza y por el
DORONIO, NAMELY: REGINA NO con el camino para Villasis; midiendo
AND FLORA, BOTH SURNAMED una extension superficial mil ciento
DORONIO, Present: cincuenta y dos metros cuadrados.[4]
Petitioners,
YNARES-SANTIAGO, J., The spouses had children but the records fail to
C disclose their number. It is clear, however, that Marcelino
h
a Doronio and Fortunato Doronio, now both deceased, were
i
among them and that the parties in this case are their
r
p heirs. Petitioners are the heirs of Marcelino Doronio, while
e
r respondents are the heirs of Fortunato Doronio.
s
o
n On April 24, 1919, a private deed of
,
- versus - AUSTRIA-MARTINEZ, donation propter nuptias[5] was executed by spouses Simeon
CHICO-NAZARIO,
Doronio and Cornelia Gante in favor of Marcelino Doronio
NACHUR
A, and and the latters wife, Veronica Pico. One of the properties
HEIRS OF FORTUNATO REYES, JJ.
DORONIO, NAMELY: TRINIDAD subject of said deed of donation is the one that it described
ROSALINA DORONIO-BALMES,
as follows:
MODING DORONIO, FLORENTINA
DORONIO, AND ANICETA Promulgated:
ALCANTARA-MANALO, Fourth A piece of residential land
Respondents. December 27, 2007 located in the barrio of Cabalitian but we
x---------------------------------------------- did not measure it, the area is bounded on
----x the north by Gabriel Bernardino; on the
east by Fortunato Doronio; on the south by
DECISION Geminiano Mendoza and on the west by a
road to Villasis. Constructed on said land is a
house of light materials also a part of the
REYES, R.T., J.: dowry. Value 200.00.[6]

For Our review on certiorari is the Decision[1] of the

Court of Appeals (CA) reversing that[2] of the Regional Trial

Court (RTC), Branch 45, Anonas, Urdaneta City, Pangasinan, in
an action for reconveyance and damages. The CA declared
respondents as rightful owners of one-half of the subject
property and directed petitioners to execute a registerable
document conveying the same to respondents.
It appears that the property described in the deed of
donation is the one covered by OCT No. 352. However, there
is a significant discrepancy with respect to the identity of the
owner of adjacent property at the eastern side. Based on OCT
No. 352, the adjacent owners are Zacarias Najorda and

Alejandro Najorda, whereas based on the deed of donation,

the owner of the adjacent property is Fortunato

The Facts Doronio. Furthermore, said deed of donation remained a

private document as it was never notarized. [7]

Spouses Simeon Doronio and Cornelia Gante, now both

deceased, were the registered owners of a parcel of land Both parties have been occupying the subject land
located at Barangay Cabalitaan, Asingan, Pangasinan covered for several decades[8] although they have different theories
by Original Certificate of Title (OCT) No. 352. [3] The courts regarding its present ownership. According to petitioners,
below described it as follows: they are now the owners of the entire property in view of the

private deed of donation propter nuptias in favor of their

Un terreno (Lote 1018), situada en el
municipio de Asingan, Linda por el NE; con predecessors, Marcelino Doronio and Veronica Pico.
 Determined to remain in their possessed property,

Respondents, on the other hand, claim that only half respondent heirs of Fortunato Doronio (as plaintiffs) filed an

of the property was actually incorporated in the said deed of action for reconveyance and damages with prayer for

donation because it stated that Fortunato Doronio, instead of preliminary injunction[15] against petitioner heirs of Marcelino

Zacarias Najorda and Alejandro Najorda, is the owner of the Doronio (as defendants) before the RTC, Branch 45,

adjacent property at the eastern side. Respondents posit that Anonas, Urdaneta City, Pangasinan. Respondents contended,

the donors respected and segregated the possession of among others, that the subject land is different from what

Fortunato Doronio of the eastern half of the land. They are was donated as the descriptions of the property under OCT

the ones who have been possessing said land occupied by No. 352 and under the private deed of donation were

their predecessor, Fortunato Doronio. different. They posited that spouses Simeon Doronio and

Cornelia Gante intended to donate only one-half of the

Eager to obtain the entire property, the heirs of property.

Marcelino Doronio and Veronica Pico filed, on January 11,

1993, before the RTC in Urdaneta, Pangasinan a petition For During the pre-trial conference, the parties

the Registration of a Private Deed of Donation [9] docketed as stipulated, among others, that the property was originally

Petition Case No. U-920. No respondents were named in the covered by OCT No. 352 which was cancelled by TCT No.

said petition[10] although notices of hearing were posted on 44481.They also agreed that the issues are: (1) whether or not

the bulletin boards of Barangay Cabalitaan, Municipalities of there was a variation in the description of the property

Asingan and Lingayen.[11] subject of the private deed of donation and OCT No. 352; (2)

whether or not respondents had acquired one-half of the

property covered by OCT No. 352 by acquisitive prescription;

During the hearings, no one interposed an objection (3) whether or not the transfer of the whole property covered

to the petition.[12] After the RTC ordered a general default, by OCT No. 352 on the basis of the registration of the private
[13]
the petition was eventually granted on September 22, deed of donation notwithstanding the discrepancy in the

1993. This led to the registration of the deed of donation, description is valid; (4) whether or not respondents are

cancellation of OCT No. 352 and issuance of a new Transfer entitled to damages; and (5) whether or not TCT No. 44481 is

Certificate of Title (TCT) No. 44481 in the names of Marcelino valid.[16]

Doronio and Veronica Pico.[14] Thus, the entire property was

titled in the names of petitioners predecessors. RTC Decision

On April 28, 1994, the heirs of Fortunato Doronio After due proceedings, the RTC ruled in favor of

filed a pleading before the RTC in the form of a petition in the petitioner heirs of Marcelino Doronio (defendants). It

same Petition Case No. U-920. The petition was for the concluded that the parties admitted the identity of the land

reconsideration of the decision of the RTC that ordered the which they all occupy;[17] that a title once registered under the

registration of the subject deed of donation. It was prayed in torrens system cannot be defeated by adverse, open and

the petition that an order be issued declaring null and void notorious possession or by prescription; [18] that the deed of

the registration of the private deed of donation and donation in consideration of the marriage of the parents of

that TCT No. 44481 be cancelled. However, the petition was petitioners is valid, hence, it led to the eventual issuance

dismissed on May 13, 1994 on the ground that the decision in of TCT No. 44481 in the names of said parents; [19] and that

Petition Case No. U-920 had already become final as it was respondent heirs of Fortunato Doronio (plaintiffs) are not

not appealed. entitled to damages as they are not the rightful owners of the

portion of the property they are claiming.[20]

 The CA based its conclusion on the disparity of the

The RTC disposed of the case, thus: following technical descriptions of the property under OCT

No. 352 and the deed of donation, to wit:

WHEREFORE, premises considered,
the Court hereby renders judgment
DISMISSING the herein Complaint filed by The court below described the
plaintiffs against defendants.[21] property covered by OCT No. 352 as follows:

Un terreno (Lote
1018), situada en el
municipio de Asingan,
Linda por el NE; con
propriedad de Gabriel
Disagreeing with the judgment of the RTC, Bernardino; con el SE con
propriedad de Zacarias
respondents appealed to the CA. They argued that the trial Najorda y Alejandro
court erred in not finding that respondents predecessor-in- Najorda; por el SO con
propriedad de Geminiano
interest acquired one-half of the property covered by OCT No. Mendoza y por el NO con
el camino para Villasis;
352 by tradition and/or intestate succession; that the deed of
midiendo una extension
donation dated April 26, 1919 was null and void; that superficial mil ciento
cincuenta y dos metros
assuming that the deed of donation was valid, only one-half cuadrados.
of the property was actually donated to Marcelino Doronio
On the other hand, the property
and Veronica Pico; and that respondents acquired ownership donated to appellees predecessors was
described in the deed of donation as:
of the other half portion of the property by acquisitive
Fourth A piece of
prescription.[22]
residential land located in
the barrio of Cabalitian
but we did not measure it,
CA Disposition the area is bounded on
the north by Gabriel
Bernardino; on the east
In a Decision dated January 26, 2005, the CA by Fortunato Doronio; on
the south by Geminiano
reversed the RTC decision with the following disposition: Mendoza and on the west
by a road to
WHEREFORE, the assailed Decision Villasis. Constructed on
dated June 28, 2002 is REVERSED and SET said land is a house of
ASIDE. Declaring the appellants as rightful light materials also a part
owners of one-half of the property now of the dowry. Value
covered by TCT No. 44481, the appellees 200.00.[25] (Emphasis ours)
are hereby directed to execute a
registerable document conveying the same
to appellants. Taking note that the boundaries of the lot donated to

SO ORDERED.[23] Marcelino Doronio and Veronica Pico differ from the

boundaries of the land owned by spouses Simeon Doronio

The appellate court determined that (t)he intention and Cornelia Gante, the CA concluded that spouses Simeon

to donate half of the disputed property to appellees Doronio and Cornelia Gante donated only half of the property

predecessors can be gleaned from the disparity of technical covered by OCT No. 352.[26]

descriptions appearing in the title (OCT No. 352) of spouses

Simeon Doronio and Cornelia Gante and in the deed of Regarding the allegation of petitioners that OCT No.

donation propter nuptias executed on April 24, 1919 in favor 352 is inadmissible in evidence, the CA pointed out that,

of appellees predecessors.[24] while the OCT is written in the Spanish language, this

document already forms part of the records of this case for

failure of appellees to interpose a timely objection when it

was offered as evidence in the proceedings a quo. It is a well-

settled rule that any objection to the admissibility of such

evidence not raised will be considered waived and said Our Ruling

evidence will have to form part of the records of the case as

OCT No. 352 in Spanish Although Not
competent and admitted evidence.[27] Translated into English or Filipino Is
Admissible For Lack of Timely Objection

The CA likewise ruled that the donation of the entire property

in favor of petitioners predecessors is invalid on the ground Petitioners fault the CA for admitting OCT No. 352 in

that it impairs the legitime of respondents predecessor, evidence on the ground that it is written in Spanish

Fortunato Doronio. On this aspect, the CA reasoned out: language. They posit that (d)ocumentary evidence in an

unofficial language shall not be admitted as evidence, unless

Moreover, We find the donation of the accompanied with a translation into English or Filipino. [30]
entire property in favor of appellees
predecessors invalid as it impairs the
legitime of appellants predecessor. Article
961 of the Civil Code is explicit. In default of The argument is untenable. The requirement that
testamentary heirs, the law vests the documents written in an unofficial language must be
inheritance, x x x, in the legitimate x x x
relatives of the deceased, x x x. As Spouses accompanied with a translation in English or Filipino as a
Simeon Doronio and Cornelia Gante died
prerequisite for its admission in evidence must be insisted
intestate, their property shall pass to their
lawful heirs, namely: Fortunato and upon by the parties at the trial to enable the court, where a
Marcelino Doronio. Donating the entire
property to Marcelino Doronio and Veronica translation has been impugned as incorrect, to decide the
Pico and excluding another heir, Fortunato,
issue.[31] Where such document, not so accompanied with a
tantamounts to divesting the latter of his
rightful share in his parents translation in English or Filipino, is offered in evidence and not
inheritance. Besides, a persons prerogative
to make donations is subject to certain objected to, either by the parties or the court, it must be
limitations, one of which is that he cannot
presumed that the language in which the document is written
give by donation more than what he can
give by will (Article 752, Civil Code). If he is understood by all, and the document is admissible in
does, so much of what is donated as
exceeds what he can give by will is deemed evidence.[32]
inofficious and the donation is reducible to
the extent of such excess.[28]
Moreover, Section 36, Rule 132 of the Revised Rules

of Evidence provides:
Petitioners were not pleased with the decision of the

CA. Hence, this petition under Rule 45.

SECTION 36. Objection. Objection
to evidence offered orally must be made
immediately after the offer is made.
Issues
Objection to a question
propounded in the course of the oral
Petitioners now contend that the CA erred in: examination of a witness shall be made as
soon as the grounds therefor shall become
reasonably apparent.
1. DECLARING ADMISSIBILITY OF THE
ORIGINAL CERTIFICATE OF TITLE NO. An offer of evidence in writing
352 DESPITE OF LACK OF shall be objected to within three (3) days
TRANSLATION THEREOF. after notice of the offer unless a different
period is allowed by the court.
2. (RULING THAT) ONLY HALF OF THE
DISPUTED PROPERTY WAS DONATED In any case, the grounds for the
TO THE PREDECESSORS-IN-INTEREST objections must be specified. (Emphasis
OF THE HEREIN APPELLANTS. ours)

3. (ITS) DECLARATION THAT THE

DONATION PROPTER NUPTIAS IS
Since petitioners did not object to the offer of said
INNOFICIOUS, IS
PREMATURE, AND THUS IT IS documentary evidence on time, it is now too late in the day
ILLEGAL AND UNPROCEDURAL.[29]
for them to question its admissibility. The rule is that evidence
not objected may be deemed admitted and may be validly As explained by the Court in Natcher v. Court of

considered by the court in arriving at its judgment. [33] This is Appeals:[42]

true even if by its nature, the evidence is inadmissible and

Section 3, Rule 1 of the 1997 Rules
would have surely been rejected if it had been challenged at of Civil Procedure defines civil action and
the proper time.[34] special proceedings, in this wise:

x x x a) A civil
action is one by which a
As a matter of fact, instead of objecting, petitioners party sues another for the
admitted the contents of Exhibit A, that is, OCT No. 352 in enforcement or protection
of a right, or the
their comment[35] on respondents formal offer of prevention or redress of a
wrong.
documentary evidence. In the said comment, petitioners

alleged, among others, that Exhibits A, B, C, D, E, F and G, are A civil action may
either be ordinary or
admitted but not for the purpose they are offered special. Both are governed
by the rules for ordinary
because these exhibits being public and official documents
civil actions, subject to
are the best evidence of that they contain and not for what a specific rules prescribed
for a special civil action.
party would like it to prove.[36] Said evidence was admitted by
xxxx
the RTC.[37] Once admitted without objection, even though not

admissible under an objection, We are not inclined now to c) A special

reject it.[38] Consequently, the evidence that was not objected
to became property of the case, and all parties to the case are
considered amenable to any favorable or unfavorable effects
resulting from the said evidence.[39]
Issues on Impairment of Legitime
Should Be Threshed Out in a Special
Proceeding, Not in Civil Action for
Reconveyance and Damages
On the other hand, petitioners are correct in alleging
that the issue regarding the impairment of legitime of
Fortunato Doronio must be resolved in an action for the
settlement of estates of spouses Simeon Doronio and
Cornelia Gante. It may not be passed upon in an action for
reconveyance and damages. A probate court, in the exercise
of its limited jurisdiction, is the best forum to ventilate and
proceeding is a remedy by
which a party seeks to
establish a status, a right
or a particular fact.
As could be gleaned from the
foregoing, there lies a marked distinction
between an action and a special
proceeding. An action is a formal demand of
ones right in a court of justice in the manner
prescribed by the court or by the law. It is
the method of applying legal remedies
according to definite established rules. The
term special proceeding may be defined as
an application or proceeding to establish
the status or right of a party, or a particular
fact. Usually, in special proceedings, no
formal pleadings are required unless the
statute expressly so provides. In special
proceedings, the remedy is granted
generally upon an application or motion.
Citing American Jurisprudence, a
noted authority in Remedial Law expounds
further:

adjudge the issue of impairment of legitime as well as other It may accordingly

be stated generally that
related matters involving the settlement of estate. [40] actions include those
proceedings which are
instituted and prosecuted
An action for reconveyance with damages is a civil according to the ordinary
rules and provisions
action, whereas matters relating to settlement of the estate of relating to actions at law
a deceased person such as advancement of property made by or suits in equity, and that
special proceedings
the decedent, partake of the nature of a special include those proceedings
which are not ordinary in
proceeding. Special proceedings require the application of this sense, but is
specific rules as provided for in the Rules of Court.[41] instituted and prosecuted
according to some special
mode as in the case of
 proceedings commenced
without summons and We likewise find merit in petitioners contention that
prosecuted without before any conclusion about the legal share due to a
regular pleadings, which
are characteristics of compulsory heir may be reached, it is necessary that certain
ordinary actions x x x. A
steps be taken first.[43] The net estate of the decedent must be
special proceeding must
therefore be in the nature ascertained, by deducting all payable obligations and charges
of a distinct and
independent proceeding from the value of the property owned by the deceased at the
for particular relief, such
time of his death; then, all donations subject to collation
as may be instituted
independently of a would be added to it. With the partible estate thus
pending action, by
petition or motion upon determined, the legitime of the compulsory heir or heirs can
notice.
be established; and only then can it be ascertained whether
Applying these principles, an action or not a donation had prejudiced the legitimes.[44]
for reconveyance and annulment of title
with damages is a civil action, whereas
matters relating to settlement of the estate Declaration of Validity of Donation
of a deceased person such as advancement Can Be Challenged by an Interested
of property made by the decedent, partake Party Not Impleaded in Petition for
of the nature of a special proceeding, which Quieting of Title or Declaratory Relief
concomitantly requires the application of or Where There is No Res Judicata.
specific rules as provided for in the Rules of Moreover, This Court Can Consider
Court. a Factual Matter or Unassigned Error
in the Interest of Substantial Justice.
Clearly, matters which involve
settlement and distribution of the estate of
the decedent fall within the exclusive Nevertheless, petitioners cannot preclude the determination
province of the probate court in the exercise
of its limited jurisdiction. of validity of the deed of donation on the ground that (1) it

has been impliedly admitted by respondents; (2) it has

Thus, under Section 2, Rule 90 of
the Rules of Court, questions as to already been determined with finality by the RTC in Petition
advancement made or alleged to have been
made by the deceased to any heir may be Case No. U-920; or (3) the only issue in an action for
heard and determined by the court having reconveyance is who has a better right over the land. [45]
jurisdiction of the estate proceedings, and
the final order of the court thereon shall be
binding on the person raising the questions
and on the heir. The validity of the private deed of donation propter

nuptias in favor of petitioners predecessors was one of the

While it may be true that the Rules
used the word may, it is nevertheless clear issues in this case before the lower courts. The pre-trial
that the same provision contemplates a
order[46] of the RTC stated that one of the issues before it is
probate court when it speaks of the court
having jurisdiction of the estate (w)hether or not the transfer of the whole property covered
proceedings.
by OCT No. 352 on the basis of the private deed of donation
Corollarily, the Regional Trial Court
notwithstanding the discrepancy in the description is
in the instant case, acting in its general
jurisdiction, is devoid of authority to render valid. Before the CA, one of the errors assigned by
an adjudication and resolve the issue of
advancement of the real property in favor respondents is that THE TRIAL COURT ERRED IN NOT FINDING
of herein petitioner Natcher, inasmuch as
THAT THE PRIVATE DEED OF DONATION DATED APRIL 26,
Civil Case No. 71075 for reconveyance and
annulment of title with damages is not, to 1919 WAS NULL AND VOID.[47]
our mind, the proper vehicle to thresh out
said question. Moreover, under the present
circumstances, the RTC of Manila, Branch The issue of the validity of donation is likewise
55, was not properly constituted as a
probate court so as to validly pass upon the brought to Us by petitioners as they stated in their
question of advancement made by the
decedent Graciano Del Rosario to his wife, Memorandum[48] that one of the issues to be resolved is
herein petitioner Natcher. regarding the alleged fact that THE HONORABLE COURT OF

APPEALS ERRED IN FINDING THE DONATION INVALID. We are

 any interest which would be affected by
thus poised to inspect the deed of donation and to determine the declaration; and no declaration shall,
its validity. except as otherwise provided in these
rules, prejudice the rights of persons not
parties to the action. (Emphasis ours)
We cannot agree with petitioners contention that

respondents may no longer question the validity of the deed However, respondents were not made parties in the
of donation on the ground that they already impliedly said Petition Case No. U-920. Worse, instead of issuing
admitted it. Under the provisions of the Civil Code, a void summons to interested parties, the RTC merely allowed the
contract is inexistent from the beginning. The right to set up posting of notices on the bulletin boards
the defense of its illegality cannot be waived. [49] The right to of Barangay Cabalitaan, Municipalities of Asingan and
set up the nullity of a void or non-existent contract is not Lingayen, Pangasinan. As pointed out by the CA, citing the
limited to the parties as in the case of annullable or voidable ruling of the RTC:
contracts; it is extended to third persons who are directly
x x x In the said case or Petition No. U-920,
affected by the contract.[50] notices were posted on the bulletin boards
of barangay Cabalitaan, Municipalities of
Asingan and Lingayen, Pangasinan, so that
Consequently, although respondents are not parties there was a notice to the whole world and
during the initial hearing and/or hearings,
in the deed of donation, they can set up its nullity because
no one interposed objection thereto.[54]
they are directly affected by the same. [51] The subject of the

deed being the land they are occupying, its enforcement will
Suits to quiet title are not technically suits in rem,
definitely affect them.
nor are they, strictly speaking, in personam, but being against

the person in respect of the res, these proceedings are

Petitioners cannot also use the finality of
characterized as quasi in rem.[55] The judgment in such
the RTC decision in Petition Case No. U-920 [52]
as a shield
proceedings is conclusive only between the parties. [56] Thus,
against the verification of the validity of the deed of
respondents are not bound by the decision in Petition Case
donation.According to petitioners, the said final decision is
No. U-920 as they were not made parties in the said case.
one for quieting of title. [53]
In other words, it is a case for

declaratory relief under Rule 64 (now Rule 63) of the Rules of

The rules on quieting of title[57] expressly provide that
Court, which provides:
any declaration in a suit to quiet title shall not prejudice

persons who are not parties to the action.

SECTION 1. Who may file petition.
Any person interested under a deed, will,
contract or other written instrument, or
whose rights are affected by a statute,
executive order or regulation, or ordinance,
may, before breach or violation thereof,
bring an action to determine any question That respondents filed a subsequent pleading [58] in
of construction or validity arising under the
instrument or statute and for a declaration the same Petition Case No. U-920 after the decision there had
of his rights or duties thereunder. become final did not change the fact that said decision

became final without their being impleaded in the case. Said

subsequent pleading was dismissed on the ground of finality

of the decision.[59]
An action for the reformation of an
instrument, to quiet title to real property
or remove clouds therefrom, or to
Thus, the RTC totally failed to give respondents their
consolidate ownership under Article 1607 of
the Civil Code, may be brought under this day in court. As a result, they cannot be bound by its orders.
rule.
Generally accepted is the principle that no man shall be
SECTION 2. Parties. All persons
affected by any proceeding to which he is a stranger, and
shall be made parties who have or claim
strangers to a case are not bound by judgment rendered by considering a pivotal factual matter. The Supreme Court is

the court.[60] clothed with ample authority to review palpable errors not

assigned as such if it finds that their consideration is

Moreover, for the principle of res judicata to apply, necessary in arriving at a just decision.[67]

the following must be present: (1) a decision on the merits;

(2) by a court of competent jurisdiction; (3) the decision is A rudimentary doctrine on appealed cases is that this

final; and (4) the two actions involve identical parties, subject Court is clothed with ample authority to review matters, even

matter and causes of action. [61] The fourth element is not if they are not assigned as errors on appeal, if it finds that

present in this case. The parties are not identical because their consideration is necessary at arriving at a just decision of

respondents were not impleaded in Petition Case No. U- the case.[68] Also, an unassigned error closely related to an

920. While the subject matter may be the same property error properly assigned or upon which the determination of

covered by OCT No. 352, the causes of action are the question raised by the error properly assigned is

different. Petition Case No. U-920 is an action for declaratory dependent, will be considered by the appellate court

relief while the case below is for recovery of property. notwithstanding the failure to assign it as an error. [69]

Donation Propter Nuptias of Real

We are not persuaded by petitioners posture that Property Made in a Private Instrument
the only issue in this action for reconveyance is who has a Before the New Civil Code Took Effect
on August 30, 1950 is Void
better right over the land; and that the validity of the deed of

donation is beside the point.[62] It is precisely the validity and

We now focus on the crux of the petition, which is
enforceability of the deed of donation that is the determining
the validity of the deed of donation. It is settled that only laws
factor in resolving the issue of who has a better right over the
existing at the time of the execution of a contract are
property. Moreover, notwithstanding procedural lapses as to
applicable to it and not the later statutes, unless the latter are
the appropriateness of the remedies prayed for in the petition
specifically intended to have retroactive effect. [70] Accordingly,
filed before Us, this Court can brush aside the technicalities in
the Old Civil Code applies in this case as the donation propter
the interest of justice. In some instances, this Court even
nuptias was executed in 1919, while the New Civil Code took
suspended its own rules and excepted a case from their
effect only on August 30, 1950.
operation whenever the higher interests of justice so

demanded.[63]
Under the Old Civil Code, donations propter

nuptias must be made in a public instrument in which the

Moreover, although respondents did not directly
property donated must be specifically described. [71] Article
raise the issue of validity of the deed of donation at the
1328 of the Old Civil Code provides that gifts propter
commencement of the case before the trial court, it was
nuptias are governed by the rules established in Title 2 of
stipulated[64] by the parties during the pre-trial conference. In
Book 3 of the same Code. Article 633 of that title provides
any event, this Court has authority to inquire into any
that the gift of real property, in order to be valid, must appear
question necessary in arriving at a just decision of a case
in a public document.[72] It is settled that a donation of real
before it. [65]
Though not specifically questioned by the parties,
estate propter nuptias is void unless made by public
additional issues may also be included, if deemed important
instrument.[73]
for substantial justice to be rendered. [66]

In the instant case, the donation propter nuptias did not

Furthermore, this Court has held that although a
become valid. Neither did it create any right because it was
factual issue is not squarely raised below, still in the interest
not made in a public instrument. [74] Hence, it conveyed no
of substantial justice, this Court is not prevented from
title to the land in question to petitioners predecessors.
 [79]
Where such an illegal transfer is made, as in the case at

Logically, then, the cancellation of OCT No. 352 and the bar, the law presumes that no registration has been made and

issuance of a new TCT No. 44481 in favor of petitioners so retains title in the real owner of the land.[80]

predecessors have no legal basis. The title to the subject

property should, therefore, be restored to its original owners Although We confirm here the invalidity of the deed of

under OCT No. 352. donation and of its resulting TCT No. 44481, the controversy

between the parties is yet to be fully settled. The issues as to

Direct reconveyance to any of the parties is not possible as it who truly are the present owners of the property and what is

has not yet been determined in a proper proceeding who the extent of their ownership remain unresolved. The same

among the heirs of spouses Simeon Doronio and Cornelia may be properly threshed out in the settlement of the estates

Gante is entitled to it. It is still unproven whether or not the of the registered owners of the property, namely: spouses

parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante.

Simeon Doronio and Cornelia Gante. As earlier intimated,

there are still things to be done before the legal share of all WHEREFORE, the appealed Decision

the heirs can be properly adjudicated.[75] is REVERSED AND SET ASIDE. A new one is entered:

Titled Property Cannot Be Acquired

By Another By Adverse Possession (1) Declaring the private deed of donation propter
or Extinctive Prescription nuptias in favor of petitioners predecessors NULL AND VOID;

and
Likewise, the claim of respondents that they became (2) Ordering the Register of Deeds of Pangasinan to:
owners of the property by acquisitive prescription has no

merit. Truth to tell, respondents cannot successfully invoke (a) CANCEL Transfer Certificate of
the argument of extinctive prescription. They cannot be Title No. 44481 in the names of Marcelino
deemed the owners by acquisitive prescription of the portion Doronio and Veronica Pico; and
of the property they have been possessing. The reason is that

the property was covered by OCT No. 352. A title once (b) RESTORE Original Certificate of
registered under the torrens system cannot be defeated even Title No. 352 in the names of its original
by adverse, open and notorious possession; neither can it be owners, spouses Simeon Doronio and
defeated by prescription. [76]
It is notice to the whole world Cornelia Gante.
and as such all persons are bound by it and no one can plead

ignorance of the registration.[77] SO ORDERED.

The torrens system is intended to guarantee the

integrity and conclusiveness of the certificate of registration,

but it cannot be used for the perpetration of fraud against the

real owner of the registered land.[78] The system merely

confirms ownership and does not create it. Certainly, it

cannot be used to divest the lawful owner of his title for the

purpose of transferring it to another who has not acquired it

by any of the modes allowed or recognized by law. It cannot

be used to protect a usurper from the true owner, nor can it

be used as a shield for the commission of fraud; neither does

it permit one to enrich himself at the expense of another.


G.R. No. L-65800 October 3, 1986
PARTENZA LUCERNA VDA. DE TUPAS, petitioner-appellant,
vs.
BRANCH XLIII of the HON. REGIONAL TRIAL COURT OF
NEGROS OCCIDENTAL, respondent, and TUPAS
FOUNDATION, INC., private respondent-appellee.
Abraham D. Caa for petitioner-appellant.
Jose R. Edis for private respondent-appellee.
NARVASA, J.:
Involved in this appeal is the question of whether or not a
donation inter vivos by a donor now deceased is inofficious
and should be reduced at the instance of the donor's widow.
Epifanio R. Tupas died on August 20, 1978 in Bacolod City,
childless, leaving his widow, Partenza Lucerna, as his only
surviving compulsory heir. He also left a win dated May 18,
1976, which was admitted to probate on September 30, 1980
in Special Proceedings No. 13994 of the Court of First Instance
of Negros Occidental. Among the assets listed in his will were
lots Nos. 837, 838 and 839 of the Sagay Cadastre, admittedly
his private capital. However, at the time of his death, these
lots were no longer owned by him, he having donated them
the year before (on August 2, 1977) to the Tupas Foundation,
Inc., which had thereafter obtained title to said lots.
Claiming that said donation had left her practically destitute
of any inheritance, Tupas' widow brought suit against Tupas
Foundation, Inc. in the same Court of First Instance of Negros
Occidental (docketed as Civil Case No. 16089) to have the
donation declared inofficious insofar as it prejudiced her
legitime, therefore reducible " ... by one-half or such
proportion as ... (might be deemed) justified ... and " ... the
resulting deduction ... " restored and conveyed or delivered to
her. The complaint also prayed for attorney's fees and such
other relief as might be proper.
The Trial Court did not see things her way. Upon the facts
above stated, on which the parties stipulated, 1 said Court
dismissed the complaint for lack of merit, rejecting her claim
on several grounds, viz.:
... (1) Article 900 relied upon by plaintiff is
not applicable because the properties which
were disposed of by way of donation one
year before the death of Epifanio
Tupas were no longer part of his hereditary
estate at the time of his death on August 20,
1978; (2) the donation properties were
Epifanio's capital or separate estate; and (3)
Tupas Foundation, Inc. being a stranger and
not a compulsory heir, the donation inter
vivos made in its favor was not subject to
collation under Art. 106 1, C.C.2
The Trial Court is in error on all counts and must be reversed.
A person's prerogative to make donations is subject to certain
limitations, one of which is that he cannot give by donation
more than he can give by will (Art. 752, Civil Code). 3 If he
does, so much of what is donated as exceeds what he can give
by will is deemed inofficious and the donation is reducible to
the extent of such excess, though without prejudice to its
taking effect in the donor's lifetime or the donee's
appropriating the fruits of the thing donated (Art. 771, Civil
Code). Such a donation is, moreover, collationable that is, its
value is imputable into the hereditary estate of the donor at
the tune of his death for the purpose of determining the
legitime of the forced or compulsory heirs and the freely
disposable portion of the estate. This is true as well of
donations to strangers as of gifts to compulsory heirs,
although the language of Article 1061 of the Civil Code would
seem to limit collation to the latter class of donations. And
this has been held to be a long-established rule in Liguez vs.
Honorable Court of Appeals, et al., 4 where this Court said:
... Hence, the forced heirs are entitled to
have the donation set aside in so far
as inofficious: i.e., in excess of the portion of
free disposal (Civil Code of 1889, Articles
636, 645), computed as provided in Articles
818 and 819, and bearing in mind that
collationable gifts' under Article 818 should
include gifts made not only in favor of the
forced heirs, but even those made in favor
of strangers, as decided by the Supreme
Court of Spain in its decision of 4 May 1899
and 16 June 1902. So that in computing the
legitimes, the value of the property donated
to herein appellant, Conchita Liguez, should
be considered part of the donor's estate.
Once again, only the court of origin has the
requisite data to determine whether the
donation is inofficious or not. 5
The fact, therefore, that the donated property no longer
actually formed part of the estate of the donor at the time of
his death cannot be asserted to prevent its being brought to
collation. Indeed, it is an obvious proposition that collation
contemplates and particularly applies to gifts inter vivos. 6 The
further fact that the lots donated were admittedly capital or
separate property of the donor is of no moment, because a
claim of inofficiousness does not assert that the donor gave
what was not his, but that he gave more than what was
within his power to give.
Since it is clear that the questioned donation is collationable
and that, having been made to a stranger (to the donor) it is,
by law 7 chargeable to the freely disposable portion of the
donor's estate, to be reduced insofar as inofficious, i.e., it
exceeds said portion and thus impairs the legitime of the
compulsory heirs, in order to find out whether it is inofficious
or not, recourse must be had to the rules established by the
Civil Code for the determination of the legitime and, by
extension, of the disposable portion. These rules are set forth
in Articles 908, 909 and 910 of the Code, on the basis of
which the following step-by-step procedure has been
correctly outlined:
(1) determination of the value of the
property which remains at the time of the
testator's death;
(2) determination of the obligations, debts,
and charges which have to be paid out or
deducted from the value of the property
thus left;
 (3) the determination of the difference
between the assets and the liabilities, giving
rise to the hereditary estate;

(4) the addition to the net value thus found,

of the value, at the time they were made, of
donations subject to collation; and

(5) the determination of the amount of the

legitimes by getting from the total thus
found the portion that the law provides as
the legitime of each respective compulsory
heir.8

Deducting the legitimes from the net value of the hereditary

estate leaves the freely disposable portion by which the
donation in question here must be measured. If the value of
the donation at the time it was made does not exceed that
difference, then it must be allowed to stand. But if it does, the
donation is inofficious as to the excess and must be reduced
by the amount of said excess. In this case, if any excess be
shown, it shall be returned or reverted to the petitioner-
appellant as the sole compulsory heir of the deceased
Epifanio R. Tupas.

For obvious reasons, this determination cannot now be made,

as it requires appreciation of data not before this Court and
may necessitate the production of evidence in the Court a
quo.

WHEREFORE, the appealed decision is reversed and

petitioner-appellant Partenza Lucerna Vda. de Tupas is
adjudged entitled to so much of the donated property in
question, as may be found in excess of the freely disposable
portion of the estate of Epifanio B. Tupas, determined in the
manner above-indicated. Let the case be remanded to the
Trial Court for further appropriate proceedings in accordance
with this decision.

SO ORDERED.