THIRD DIVISION

G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals,3 dated December 23, 1993, in
CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in
Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr.
Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of
511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre.
The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the
then Court of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of
141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-
4002 (10942), which is registered in my name according to the records of the Register of
Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights
which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and
spouse of Jorge Rabadilla.

xxx
 FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall
have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G.
Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every
year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give
yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela
y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I
have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer,
lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED
(100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina
shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my
command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize
this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants,
(sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar
until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs
of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage,
they cannot negotiate with others than my near descendants and my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla,
and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny
(petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed
as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the
above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters
Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the
near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of
sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena
Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as
mandated by the Codicil, despite repeated demands for compliance.
 3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in
case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall
likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private
respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot
No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the
name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the
names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the
Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer,
accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs,
arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to
deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be
delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar
Central; and, this is considered compliance of the annuity as mentioned, and in the same manner
will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking
into consideration the composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable
on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on
or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on
or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on
or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on
or before December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a
partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and
disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely
filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there
maybe the non-performance of the command as mandated exaction from them simply because they
are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the
filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as
creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim
under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without
prejudice.

SO ORDERED."6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial
court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs
of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja
Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985;
and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court
deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate
proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by
the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392
until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with
its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of
Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in
ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview
of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article
882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is
the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find
application as there was no modal institution and the testatrix intended a mere simple substitution -
i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near
descendants" should the obligation to deliver the fruits to herein private respondent be not complied
with. And since the testatrix died single and without issue, there can be no valid substitution and
such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the
substituted heirs are not definite, as the substituted heirs are merely referred to as "near
descendants" without a definite identity or reference as to who are the "near descendants" and
therefore, under Articles 8438 and 8459 of the New Civil Code, the substitution should be deemed as
not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals
deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on
the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals
found that the private respondent had a cause of action against the petitioner. The disquisition made
on modal institution was, precisely, to stress that the private respondent had a legally demandable
right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in
accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the
moment of death of the decedent10 and compulsory heirs are called to succeed by operation of law.
The legitimate children and descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs.11 Thus, the petitioner, his mother and sisters, as compulsory heirs of
the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of
further proceedings, and the successional rights were transmitted to them from the moment of death
of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations
of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by
virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the decedent; corollarily, the
obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to
his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered to the herein private respondent every year.
Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over
the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot
involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds
to the right of private respondent over the usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of the case at bar. Therefore, private respondent
has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable
because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by
the testatrix's near descendants should there be noncompliance with the obligation to deliver the
piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or
heirs first instituted. Under substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple
substitution,12 or (2) leave his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a fideicommissary substitution.13 The Codicil
sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.14 In the case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that,
should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property
referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.15 In the case under consideration, the instituted heir is in
fact allowed under the Codicil to alienate the property provided the negotiation is with the near
descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to preserve clearly imposed
by the testator in his will, there is no fideicommissary substitution."16 Also, the near descendants' right
to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863,
the second heir or the fideicommissary to whom the property is transmitted must not be beyond one
degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first
heir is not related by first degree to the second heir.17 In the case under scrutiny, the near
descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject
Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the
provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the
testator, or the charge imposed on him, shall not be considered as a condition unless it appears that
such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes of the testator and for the return of anything he
or they may receive, together with its fruits and interests, if he or they should disregard this
obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator, it shall be complied with in a manner most
analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator
states (1) the object of the institution, (2) the purpose or application of the property left by the
testator, or (3) the charge imposed by the testator upon the heir.18 A "mode" imposes an obligation
upon the heir or legatee but it does not affect the efficacy of his rights to the succession.19 On the
other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in
order for the heir to be entitled to succeed the testator. The condition suspends but does not
obligate; and the mode obligates but does not suspend.20 To some extent, it is similar to a resolutory
condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix
intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that
the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver
one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during
the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and
the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It
is clear, though, that should the obligation be not complied with, the property shall be turned over to
the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject
Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon
the heir should not be considered a condition unless it clearly appears from the Will itself that such
was the intention of the testator. In case of doubt, the institution should be considered as modal and
not conditional.22

Neither is there tenability in the other contention of petitioner that the private respondent has only a
right of usufruct but not the right to seize the property itself from the instituted heir because the right
to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application
of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking
into consideration the circumstances under which it was made.23 Such construction as will sustain
and uphold the Will in all its parts must be adopted.24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100)
piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted
heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event
that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's
near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the
instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of
non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-
interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said
obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation
petitioner had become the obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the consummated settlement
between the lessee and the private respondent, and having consummated a settlement with the
petitioner, the recourse of the private respondent is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person
disposes of his property, to take effect after his death.25 Since the Will expresses the manner in which
a person intends how his properties be disposed, the wishes and desires of the testator must be
strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby
defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated
December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 76648 February 26, 1988

THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners,

vs.
COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,1986 affirming in toto the decision of
the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads:

WHEREFORE, the Court renders judgment declaring the holographic will marked in
evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late
Herminia Montinola in accordance with law while in possession of full testamentary
capacity, and allowing and admitting the same to probate.

Upon the finality of the decision, let letters testamentary issue to the executor,
Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section
13 of Rule 76 of the Rules of Court.

SO ORDERED. 3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22,
1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the
holographic will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who
died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will
several of her real properties to specified persons.

On April 29,1981, private respondent who was named executor in the will filed an urgent motion for
appointment of special administrator. 5 With the conformity of all the relatives and heirs of the
testatrix except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as
Special Administrator of the testate estate of deceased.

On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased
but who was not named in the said win, filed her Opposition to Probate of Will, 7 alleging inter alia:
that the subject will was not entirely written, dated and signed by the testatrix herself and the same
was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to
make testamentary dispositions; that undue influence was exerted upon the person and mind of the
testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to
the remainder of the estate.

After a hearing on the merits, the probate court, finding the evidence presented in support of the
petition to be conclusive and overwhelming, rendered its decision allowing the probate of the
disputed will.

Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed
in toto the decision. 8

On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to
her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that
witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as
well as undue influence exerted on the latter.

The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of
petitioner on the following grounds: (1) the Affidavit of merit attached to the motion alleged that
efforts were exerted to locate unnamed witnesses only after the court's decision was handed down,
and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix
as well as the undue influence exerted on her which are merely corroborative or cumulative since
these facts were brought to light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the
appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one
Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in
reality a second motion for reconsideration which is prescribed by law.

In the petition now before Us, petitioner assigned the following errors:

THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS'

MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO
BE PRESENTED IS MERELY CUMULATIVE.

II

THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR

RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID
MOTION FOR NEW TRIAL.

III
 AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE
HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND
SIGNED BY THE LATE HERMINIA MONTINOLA.

IV

THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS
FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF
EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE
TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT
THE TIME OF ITS ACTUAL EXECUTION.

THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA
WAS NOT SUBJECTED TO UNDUE PRESSURE AND
IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT
FROM THE ALLEGED WILL.

VI

THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN

QUESTION TO PROBATE.

In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.

In the first and second assigned errors, petitioners maintain that the appellate court erred in denying
the motion for new trial insisting that the new evidence sought to be presented is not merely
corroborative or cumulative.

On the other hand, the contention of private respondent is that the motion for new trial was a pro-
forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find
merit in this contention.

Section 1, Rule 53 provides —

Before a final order or judgment rendered by the Court of appeals becomes

executory, a motion for new trial may be filed on the ground of newly discovered
evidence which could not have been discovered prior to the trial in the court below by
the exercise of the diligence and which is of such a character as would probably
change the result. The motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered evidence.

The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate
witnesses whose whereabouts were not known to us during the trial in the lower
court, but I have finally succeeded in tracking them down;
 4. That despite their initial reluctance to testify in this case,I am convinced that they
would testify under proper subpoena for purposes of shedding light on the fact that
the testatrix was gravely ill at or but the time that the questioned will was allegedly
executed;

5. That they had the clear opportunity to know the circumstances under which the
purported will was executed; and that they know for a fact that there was 'undue
influence' exerted by petitioner and other relatives to procure improper favors from
the testatrix;

xxx xxx xxx 13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone
affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the
holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their
appearance before the court to testify. Affiant attests only on his belief that they would testify if and
when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue
influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite
affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. 14 The
affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to
be immaterial or of any evidentiary weight.

Moreover, it could not be said that the evidence sought to be presented is new having been
discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the
witnesses were exerted only after the decision of the appellate court was handed down. The trial
lasted for about four years so that petitioner had ample time to find said alleged witnesses who were
admittedly known to her. The evidence which the petitioner now propose to present could have been
discovered and presented during the hearing of the case, and there is no sufficient reason for
concluding that had the petitioner exercised proper diligence she would not have been able to
discover said evidence. 15

In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as
the charges of undue influence exerted upon her had been brought to light during the trial, and new
evidence on this point is merely corroborative and cumulative which is generally not a ground for
new trial. 16 Accordingly, such evidence even if presented win not carry much probative weight which
can alter the judgment. 17

It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying
the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new
law firm to do everything legally possible to meet the deadline for the filing of a motion for
reconsideration and/or for new trial. 18This would explain the haphazard preparation of the motion,
thus failing to comply with the requirements of rule 53, which was filed on the last day of the
reglementary period of appeal so that the veracity of the ground relied upon is questionable. The
appellate court correctly denied the motion for new trial.

The motion for new trial being pro-forma, it does not interrupt the running of the period for
appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the
period to appeal, the decision of the respondent court became final on the following day, September
25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was
obviously filed out of time.
Since the questioned decision has already become final and executory, it is no longer within the
province of this Court to review it. This being so, the findings of the probate court as to the due
execution of the will and the testamentary capacity of testatrix are now conclusive. 20

At any rate, even assuming that We can still review this case on its merits, the petition will also have
to fail.

During the hearing before the probate court, not only were three (3) close relatives of the testatrix
presented but also two (2) expert witnesses who declared that the contested will and signature are in
the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of
the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 or the probate
of holographic wills.

As regards the alleged antedating of the will, petitioner failed to present competent proof that the will
was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying
of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of
Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did
not prove such claim of antedating.

The factual findings of the probate court and the Court of Appeals that the will in question was
executed according to the formalities required by law are conclusive on the Supreme Court when
supported by evidence. 23 We have examined the records of this case and find no error in the
conclusion arrived at by the respondent court that the contested will was duly executed in
accordance with law.

Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason,
being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus
demonstrating the lack of testamentary capacity of testatrix.

In the case of Pecson v. Coronel, 24 it was held —

The appellants emphasize the fact that family ties in this country are very strongly
knit and that the exclusion of a relative from one's estate is an exceptional case. It is
true that the ties of relationship in the Philippines are very strong, but we understand
that cases of preterition of relatives from the inheritance are not rare. The liberty to
dispose of one's estate by will when there are no forced heirs is rendered sacred by
the Civil Code in force in the Philippines since 1889...

Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of
all his estate or any part of it in favor of any person having capacity to succeed.

It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her
will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry
worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in
the contested will.

Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her
estate is an indication of the unsoundness of her mind.

We cannot subscribe to this contention. Art. 841 of the Civil Code provides —
 A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be incapacitated to succeed.

In such cases, the testamentary dispositions made in accordance with law shall be
complied with and the remainder of the estate shall pass to the legal heirs.

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties
does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion
of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.

Neither is undue influence present just because blood relatives, other than compulsory heirs have
been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard
non-compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither
fraud or undue influence. 26 Diversity of apportionment is the usual reason for making a testament,
otherwise, the decedent might as well die intestate. 27

The contention of the petitioner that the will was obtained by undue influence or improper pressure
exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is
not enough that there was opportunity to exercise undue influence or a possibility that it may have
been exercised. 28 The exercise of improper pressure and undue influence must be supported by
substantial evidence that it was actually exercised. 29

Finally, We quote with approval the observation of the respondent court —

There is likewise no question as to the due execution of the subject Will. To Our
minds, the most authentic proof that decreased had testamentary capacity at the
time of the execution of the Will, is the Will itself which according to a report of one of
the two expert witnesses (Exhibits X to X-3) reveals the existence of significant
handwriting characteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

4. presence of natural variation... (Exhibit X).

The characteristics of spontaneity, freedom and good line quality could not be
achieved by the testatrix if it was true that she was indeed of unsound mind and/or
under undue influence or improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with
costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision
of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately
executory.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-3362 March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrix-
appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.

Eligio C. Lagman for appellant.

Reyes, Albert and Agcaoili for appellee.

JUGO, J.:

The Court of First Instance of Manila admitted to probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only
question of law. Her counsel assigns the two following alleged errors:

Primer Error. — El Juzgado inferior erro al dejar de declarar que el alegado testamento de
Carlos Gil no ha sido otogar de acuerdo con la ley.

Segundo Error. — Erro finalmente a legalizar el referido testamento.

The alleged will read as follows:

Primera Pagina (1)

EN EL NOMBRE DE DIOS, AMEN

Yo, Carlos Gil, de 66 años de edad, residente de Porac, Pampanga, I. F., hallandome sano y
en pleno goce de mis facultades intelectuales, libre y expontaneamente, sin violencia,
coaccion, dolo o influencia ilegal de persona extraña, otorgo y ordeno este mi testamento y
ultima voluntad en castellano, idioma que poseo y entiendo, de la manera siguiente:

1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos
hijos;

2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga;

3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e
inmuebles situados en Manila y en Pampanga, bajo la condicion de que cuando esta muera
y si hayan bienes remanentes heredadas por ella de mi, que dichos bienes remanentes se
adjudicaran a Don Carlos Worrel.
 4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel
a quien tengo absoluta confianza, con relevacion de fianza;

En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada

una de sus dos paginas, utiles con la clausula de atestiguamiento en presencia de los
testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de
atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac,
Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve.

CARLOS GIL

Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que
precede este escrito en la lengua castellana que conoce la testadora, compuesto de dos
paginas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y
todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA

(Fdo.) RAMON MENDIOLA

(Fdo.) MARIANO OMAÑA

Regarding the correctness and accuracy of the above-copied alleged will, the court below said:

. . . The only copy available is a printed form contained in the record appeal in case G.R. No.
L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and appellee." Both parties are agreed that this
is a true and correct copy of the will. (P. 10, Record on Appeal).

The appeal being only on questions of law the above finding of the court below cannot be disputed.
The conclusions of law reached by said court are based on it. Moreover, the finding is correctly
based on the evidence of record. The parties agreed that said copy is true and correct. If it were
otherwise, they would not have so agreed, considering that the defect is of an essential character
and is fatal to the validity of the attestation clause.

It will be noted that the attestation clause above quoted does not state that the alleged testor signed
the will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise
purpose of the attestation clause is to certify that the testator signed the will, this being the most
essential element of the clause. Without it there is no attestation at all. It is said that the court may
correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the
clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the
substance of the statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where
are we to draw the line? Following that procedure we would be making interpolations by inferences,
implication, and even by internal circumtantial evidence. This would be done in the face of the clear,
uniquivocal, language of the statute as to how the attestation clause should be made. It is to be
supposed that the drafter of the alleged will read the clear words of the statute when he prepared it.
For the court to supply alleged deficiencies would be against the evident policy of the law. Section
618 of Act No. 190, before it was amended, contained the following provision:

. . . But the absence of such form of attestation shall not render the will invalid if it proven that
the will was in fact signed and attested as in this section provided.

However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the
contents of the attestation clause, entirely suppressed the above-quoted provision. This would show
that the purpose of the amending act was to surround the execution of a will with greater guarantees
and solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by
inferences, implications, and internal circumstantial evidence? Even in ordinary cases the law
requires certain requisities for the conclusiveness of circumstantial evidence.

It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body
of the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator
should have made an attestation clause, which is the function of the witness. But the important point
is that he attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is
evident that one cannot certify his own signature, for it does not increase the evidence of its
authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph
of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding
zero to an insufficient amount does not make it sufficient.

It is said that the rules of statutory construction are applicable to documents and wills. This is true,
but said rules apply to the body of the will, containing the testamentary provisions, but not to the
attestation clause, which must be so clear that it should not require any construction.

The parties have cited pro and con several decisions of the Supreme Court, some of which are said
to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended
by Act No. 2645.

In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:

1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE

OF CIVIL PROCEDURE CONSTRUED. — The right to dispose of the property by will is
governed entirely by statute. The law is here found in section 618 of the Code of Civil
Procedure, as amended. The law not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the negative, to enforce legislative intention.

2. ID.; ID.; ATTESTATION. — The Philippine authorities relating to the attestation clause to
wills reviewed. The cases of Saño vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of
Quintana, supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar,
supra, modified.

3. ID.; ID.; ID.; ID. — The portion of section 618 of the Code of Civil Procedure, as amended,
which provides that "The attestation clause 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" applied and enforced.

4. ID.; ID.; ID.; ID. — 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. (Sano vs. Quintana, supra.)

In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief
Justice of the Supreme Court, in his decision made the following pronouncement:

. . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los

testadores firmaron el testamento en presencia de los tres testigos instrumentales y que
estos firmaron el testamento los unos en presencia de los otros, pero no se hace constar
que dichos testigos firmaron el testamento enpresencia de los testadores, ni que estos y
aquellos firmaron todas y cada una de las paginas del testamento los primeros en presencia
de los segundos y vice-versa.

En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento

Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio
intestado.

The Supreme Court fully affirmed the decision, laying down the following doctrine:

1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. — The

attestation clause must be made in strict conformity with the requirements of section 618 of
Act No. 190, as amended. Where said clause fails to show on its face a full compliance with
those requirements, the defect constitutes sufficient ground for the disallowance of the will.
(Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde
should not be admitted to establish facts not appearing on the attestation clause, and where
said evidence has been admitted it should not be given the effect intended. (Uy Coque vs.
Navas L. Sioca, 43 Phil., 405, 409.).

2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. —

Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to
give effect to the intention of the Legislature. Statutes prescribing formalities to be observed
in the execution of wills are very strictly construed. Courts cannot supply the defensive
execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)

It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban
vs. Gorcho case, supra, but not to the extent of validating an attestation clause similar to that
involved herein.

In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was
complete, and it was also signed by the two attesting witnesses. For this reason, the court said:

In reality, it appears that it is the testatrix who makes the declaration about the points
contained in the above described paragraph; however, as the witnesses, together with the
testatrix, have signed the said declaration, we are of the opinion and so hold that the words
above quoted of the testament constitute a sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that: . . . (p. 381, supra.)
The attestation clause involved herein is very different.

In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:

An attestation clause to a will, copied from a form book and reading: "We, the undersigned
attesting witnesses, whose residences are stated opposite our respective names, do hereby
certify that the testatrix, whose name is signed hereinabove, has publish unto us the
foregoing will consisting of two pages as her Last Will and Testament, and has signed the
same in our presence, and in witness whereof we have each signed the same and each
page thereof in the presence of said testatrix and in the presence of each other," held not to
be fatally defective and to conform to the law.

This very different from the attestation clause in the case at bar.

In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will
was objected to on the ground that, although the attestation clause stated that "each of the pages of
which the said will is composed" was signed by the testatrix at the left margin and at the foot of the
fifth page, it did not state that the signature was made in the presence of the witnesses. It was held,
however, that said deficiency was cured by the phrase "as well as by each of us in the presence of
the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the
witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and,
unlike the attestation clause in the present case, does not necessitate any correction. In the body of
the will the testatrix stated that she signed in the presence of each and all of the three witnesses.
This was considered as a corroboration, but it was unnecessary.

In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68
Phil., 745), the attestation clause reads as follows:

Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento
en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el
presente cada uno en presencia de los otros, o de los demas y de la del mismo testsador,
Valerio Leynez. El testamento consta de dos (2) paginas solamente.

The objection was that the attestation clause did not state that the testator and the witnesses signed
each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore,
that in case of the will complied with all the requisites for its due execution. In the instant case,
essential words were omitted.

In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18,
1939), the attestation clause reads as follows:

Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala
su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de
atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el
testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro
paginasen papel de maquinilla. Que igualmente estabamos presentes cuando el firmo este
documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien
en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de
esta escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de
cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical error is that it says "testador"
instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders
unnecessary the use of the verb "firmamos."

In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause
did not state the number of pages of the will. However, it was held that this deficiency was cured by
the will itself, which stated that it consisted of three pages and in fact it had three pages.

In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the
Court of Appeals, the attestation clause (translated in Spanish) reads as follows:

Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima
voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de
leer y de leer y de leerle el mencionado testamento, y despues de que ella dio su
conformidad, firmo y marco con su dedo pulgar derecho en nuestra presencia y en
presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos,
firmamos enpresencia de la testadora y en presencia de cada uno de nosotros.

It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the
witnesses of each and every page of the will, but the omission is cured by the fact that their
signatures appear on every page. This attestation clause is different from that involved in the present
case.

There is no reason why wills should not be executed by complying substantially with the clear
requisites of the law, leaving it to the courts to supply essential elements. The right to dispose of
property by will is not natural but statutory, and statutory requirements should be satisfied.

The right to make a testamentary disposition of one's property is purely of statutory creation,
and is available only upon the compliance with the requirements of the statute. The
formalities which the Legislature has prescribed for the execution of a will are essential to its
validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise
of the right, and the heir can be deprived of his inheritance only by a compliance with this
mode. For the purpose of determining whether a will has been properly executed, the
intention of the testator in executing it is entitled to no consideration. For that purpose only
intention of the Legislature, as expressed in the language of the statute, can be considered
by the court, and whether the will as presented, shows a compliance with the statute. Estate
of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re
Seaman's Estate, 80 Pac., 700, 701.)

In interpreting the legislature's thought, courts have rigidly opposed any exception tending to
weaken the basic principle underlying the law, the chief purpose of which is to see that the
testator's wishes are observed. It is possible, in some or many cases, a decedent may have
thought he had made a will, but the statute says he had not. The question is not one of his
intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills .
. . truly expressing the intertions of the testator are made without observations of the required
forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . .
. has taught of it best and has therefore determined, to run the risk of frustrating (that
intention, . . . in preference to the risk of giving effect to or facilitating the formation of
spurious wills, by the absence of forms. . . . The evil probably to arise by giving to wills made
without any form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious
wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.
 It has always been the policy of this court to sustain a will if it is legally possible to do so, but
we cannot break down the legislative barriers protecting a man's property after death, even if
a situation may be presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419,
420.)

In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged
will and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It
is so ordered.

Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions

TUAZON, J., dissenting:

The decision takes for granted that the will was written just as it was copied in the stipulation of facts
by the parties. But counsel for appellee makes the correctness of the copy an issue thereby raising
the question of not whether the burnt will possessed the statutory requirements but whether the copy
is erroneous. Since this is a chief feature on which the appellee's case is built; since, in fact, the
objection to form of the attestation clause, with which the decision wholly deals, would disappear if
the appellee's contention were well founded, it is proper that in this dissenting opinion we should
accord the matter at least a passing notice.

It may be stated as background that the original of the will was filed in the Court of First Instance of
Manila in 1943; that in 1945, before the will came up for probate, it was destroyed by fire or looters;
that in the probate proceeding after liberation, the parties submitted an agreed statement of facts in
which the will was reproduced as copied in the record on appeal in another case docketed in this
court on appeal as G.R. No. L-254 and decided on April 30, 1948. It further appears from the record
of that case and from the decision of this court that the controversy there concerned the right of a
nephew of the testator to impugn the will, it being alleged that he was not a legal heir and had no
interest in the probate.

As transcribed in the majority decision, it will be seen that the attestation clause is truncated and
meaningless. The last of the compound sentence in incomplete, lacking an adjective phrase.
Counsel for appellee contends that the phrase "ha sido firmado por el testador" or equivalent
expression between the words "del mismo" and the words "en nuestra presencia" should be inserted
if the sentence is to be complete and have sense. The attestation clause with the inclusion of the
omitted phrase, which we italicize should read thus:

Nosotros, los que suscribimos, todos mayores de edad, certificamos que el testamento que
precede escrito en la lengua castellana que conoce la testador, compuesto de las paginadas
utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en
la parte superior de la casilla, asi como todos las hojas del mismo (Ha sido firmado por el
testador) en nuestra presencia y que cada de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo presencia del testador y en la de cada uno de
nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of error in the
copy are enhanced by the fact that the form of the will was not in controversy. The form of the will
being immaterial, it is easily conceivable that little or on care was employed in the copying thereof in
the pleading or record on appeal above mentioned. The absence of the signature of the testator on
the first page of the copy is an additional proof that little or on pain was taken to insure accuracy in
the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another.

Quite aside from all this, the testator was presumed to know the law, as the decision says. Certainly,
Attorney Mariano Omaña, who drafted the whole instrument and signed it as an attesting witness,
knew the law and, by the context of the whole instrument, has shown familiarity with the rules of
grammar and ability to express his idea properly.

Read in the light of these circumstances — without mentioning the evidence or record, not objected
to, that the testator signed the will in the presence of the attesting witnesses — so important an
omission as to make the sentence senseless — granting such omission existed in the original
document-could not have been intentional or due to ignorance. The most that can be said is that the
flaw was due to a clerical mistake, inadvertance, or oversight.

There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the
record on Appeal" above mentioned is bound by the agreement. This is not an absolute rule. The
binding effect of a stipulation on the parties does not go to the extent of barring them or either of
them from impeaching it on the score of clerical error or clear mistake. That there was such mistake,
is indubitable. It is noteworthy that the opponent and appellant herself appears not to have noticed
any defect in the attestation clause as copied in the stipulation. It would seem that in the court below
she confined her attack on the will to the alleged failure of the testator to sign the first page. We say
this because it was only the alleged unsigning of the first page of the document which the trial court
in the appealed decision discussed and ruled upon. There is not the slightest reference in the
decision, direct or implied, to any flaw in the attestation clause — which is by far more important than
the alleged absence of the testator's signature on the first page.

As stated the problem posed by the omission in question is governed, not by the law of wills which
requires certain formalities to be observed in the execution, but by the rules of construction
applicable to statues and documents in general. And this rule would obtain even if the omission had
occurred in the original document and not in the copy alone. In either case, the court may and
should correct the error by supplying the omitted word or words.

In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su

redaccion se ha incurrido en omisiones que la razon y el sentido comon pueden suplirlas sin
alterar ni tergiversar la intencion tanto del testador como la de los tres testigos que
intervinieron en el otorgamiento de la misma. Teniendo en cuenta la fraselogia de la
segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y
en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para
dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de
atestacion surtan sus efectos.

La interpritacion que se acaba de bar a la clausula de atestacion y la correccion de los

errores gramaticales de que misma adolece, incluyendo la insercion del verbo "firmamos"
que se omitio involuntariamente, esta de acuerdo con las reglas fundamentals de
interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la
 intencion del que haya redactado el instrumento (art. 288, Cod. de Proc. Civ.;
Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pags. 225, 226.)

La solucion que se acaba de bar al asunto es la que se halla mas conforme con la justificia
en vista de que se ha presentado prueba alguna que insinue siquiera que en el otorgamiento
del testamento se ha cometido dolo o fraude con el animo de perjudiar a cualquiera.
(Testamentaria de Emiano Alcala, 40 G. O., 14. Suplemento, No. 23, pags. 131, 132.)

From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will; but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50, 51, the same work says: "To aid the court in
ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules
have been established for guidance in the construction or interpretation to be placed upon such a
will, and in general a will should be construed according to these established rules of construction."
Speaking of construction of statutes which, as has been said, is applicable to construction of
documents, the same work, in Vol. 59, p. 992, says: "Where it appears from the context that certain
words have been inadvertently omitted from a statute, the court may supply such words as are
necessary to complete the sense, and to express the legislative intent.

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills, 840, 841; 57 Am. Jur., 720.)

Let us assume, for the purpose of this decision only, that the attestation clause was drawn as the
draftsman intended, that the mistake in language in said clause was not inadvertent, and consider
the case on the premise from which the court has approached it; is the decision well grounded, at
least in the light of this court's previous decisions?

At the outset, it should be pointed out that as early as 1922 a similar case, in which the validity of the
will was sustained, found its way into this court. (Aldaba vs. Roque, 43 Phil., 378). The case was
more than four-square behind the case at bar. There the departure from the statutory formality was
more radical, in that the testator took charge or writing the entire attestation clause in the body of the
will, the witnesses limiting their role to signing the document below the testator's signature. Here, at
most, the testator took away from the witness only a small part of their assigned task, leaving them
to perform the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in
banc, through Mr. Justice Villamor said (syllabus): "When the attestation clause is signed by the
witnesses to the instruments besides the testator, such attestation clause is valid and constitutes a
substantial compliance with the provisions of section 1 of Act No. 2645, even though the facts
recited in said attestation appear to have been make by the testator himself."

That was good doctrine when it was announced. We think it is good law still. That ruling should set
the present case at rest unless the court wants to discard it. On the possibility that this is the
intention, we will dwell on the subject further.

This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that there have been
noticeable in the Philippines two divergent tendencies in the law of wills — the one being planted on
strict construction and the other on liberal construction. A late example of the former views may be
found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement
of the law. The basic case in the other direction,predicated on reason, is Abangan vs.
Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions." In the Abangan case,
unanimous court, speaking through Mr. Justice Avanceña, later Chief Justice, observed: "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 primodial 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 frustrative of the testator's last will, must be
disregarded."

Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs.
Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) 43
Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil.,
922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs.
Cartegana (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M.
Ozoa (1933), 57 J. F., 1007; Sebastian vs. Pañganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl.
No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz.,
1844; Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De Villa (1941)7, 40 Off. Gaz., 14th
Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46 Off. Gaz., Suppl. No. 1, p. 211.

The majority decision says, and we quote: "If we cure a deficiency by means of inferences, when are
we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the
line?" These same questions might well have been asked in the case above cited by the opponents
of the new trends. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The decisions we have cited to tell us when and where to
stop; the dividing line is drawn with precision. They say "Halt" when and where evidence aliunde to
fill a void in any part of the document is attempted. They only permit a probe, an exploration within
the confines of the will, to ascertain its meaning and to determine the existence or absence of the
formalities of law. They do not allow the courts to go outside the will or to admit extrinsic evidence to
supply missing details that should appear in the will itself. This clear, sharp limitation eliminates
uncertainly and ought to banish any fear of dire results.

The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or
forgot that the testator signed the will in their presence, the testator said that he did and the
witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and
none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this
court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance.
It has been said, and experience has known, that the mechanical system of construction has
operated more to defeat honest wills than prevent fraudulent ones. That, it must be conceded, is the
effect in this case of this court's rejection of the will under consideration. For the adverse party
concedes the genuineness of the document. At least, the genuineness is super obvious, and there is
not the slightest insinuation of undue pressure, mental incapacity of the testator of fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be
like lifting one's self by his own bootstraps." The simile, we say with due respect, does not look to us
quite well placed. Under physical law a man cannot raise his body from the ground by his own bare
hands without the aid of some mechanical appliance, at least not for more than a flitting moment. But
there is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of
positive law. The rationale of our dissent is that he is not. If we were to make a metaphorical
comparison, it would be more appropriate to say that a man can and generally does himself pull the
bootstraps to put the boots on.

Coming to execution of wills, we see no legitimate practical reason for objecting to the testator
instead of the witnesses certifying that he signed the will in the presence of the latter. The will is the
testator's and the intervention of attesting witnesses is designed merely to protect the testator's and
not anybody else's interest.

If the sole purpose of the statute is to make it certain that the testator has definite and complete
intention to pass his property, and to prevent, as far as possible, any chance of substituting one
instrument for another (1 Page on Wills, 481), What better guaranty of the genuineness of the will
can there be than a certification by the testator himself in the body of the will so long as the testator's
signature is duly authenticated? Witnesses may sabotage the will by muddling it or attestation
clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If
the formalities are only a means to an end and not the end themselves, and that end is achieved by
another method slightly different from the prescribed manner, what has been done by the testator
and the witnesses in the execution of the instant will should satisfy both law and conscience. The
chief requirements of statutes are writing, signature by the testator, and attestation and signature of
three witnesses. Whether the courts profess to follow the harsher rule, whether to follow the milder
rule, they agree on one thing — that as long as the testator performs each of those acts the courts
should require no more. (1 Page on Wills, 481, 484.)

Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

RESOLUTION

March 20, 1953

TUASON, J.:

This appeal is before us on a motion for reconsideration of this court's decision. Whereas formerly
six justices voted for reversal and five for affirmance of the probate court's order admitting the will to
probate, the vote upon reconsideration was six for affirmance and five for reversal, thereby making
the dissenting opinion, which had been filed, the prevailing rule of the case. Under the
circumstances, this resolution will largely be confined to a restatement of that dissenting opinion.

The will in question was presented for probate in the Court of First Instance of Manila in 1943 with
Roberto Toledo y Gil, decedent's nephew, and Pilar Gil Vda. de Murciano, decedent's sister
opposing the application. Toledo's legal right to intervene was questioned by the proponent of the
will, and the objection was sustained in an order which was affirmed by this court in G. R. No. L-254.
As a result of the latter decision, Toledo was eliminated from the case and did not appear when the
trial was resumed.

The proceeding seems to have held in abeyance pending final disposition of Toledo's appeal, and
early in 1945, before the application was heard on the merit, the record, along with the will, was
destroyed, necessitating its reconstitution after liberation. In the reconstitution, a stipulation of facts
was submitted in which, according to the appealed order, "both parties . . . agreed that the will as
transcribed in the record on appeal in Case G. R. No. L-254 is true and a correct copy.

The will consisted of only two pages, and the attestation clause as thus copied reads:

NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el testamento
que precede escrito en la lengua castellana que canoce la testador, compuesto de dos
paginas utiles con la clausula de atestigamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y
todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA.

(Fdo.) RAMON MENDIOLA.

(Fdo.) MARIANO OMAÑA

It will be noted from the above copy that the last of the compound sentence is truncated and
meaningless. This defect is the main basis of the appellant's sole assignment of error.

Counsel for appellee contend that the phrase "han sido firmadas por el testador" or equivalent
expression between the words "del mismo" and the words "en nuestra presencia" should be inserted
if the attestation clause is to be complete and have sense. With this insertion the attestation clause
would read ". . ., asi como todas las hojas del mismo han sido firmadas por el testador en nuestra
presencia . . ." The point is well taken.

It seems obvious that the missing phrase was left out from the copy. The probabilities of error in the
copy are enhanced by the fact that the form of the Will was not controversy in Toledo's appeal. The
form of the will being immaterial, it is easily conceivable that little or no care was employed in
transcribing the document in the agreement or record on appeal. The absence of the signature of the
testator on the first page of the copy is an additional proof that little or no pain taken to insure
accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is
another indication of the haste and carelessness in the transcription.

Quite aside from all this, the testator was presumed to know the law, as the trial court says.
Certainly, Attorney Mariano Omaña, who drew the instrument and signed it as an attesting witness,
knew the law and, by the context thereof, has shown familiarity with the rules of grammar and ability
to express his idea properly. In the light of these circumstances and of further fact that the clause
was brief and, by its importance, must have been written with utmost concern, so important an
omission as to make the clause or sentence senseless could not have been made, intentionally or
otherwise, in the original.

There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the
Record on appeal" is bound by the agreement. This is not an absolute rule. The binding effect of a
stipulation on the parties does not go to the extent of barring either of them from impeaching it on the
score of clerical error or clear mistake. The mistake just pointed out clearly brings the case within the
exceptions of the rule. The able counsel for the proponent of the will could not possibly have
subscribed to the agreement if they had noticed the incomplete sentence in the copy without making
an objection or reservation.
The problem posed by the omission in question is governed, not by the law of wills which requires
certain formalities to be fulfilled in the execution, but by the rules of construction applicable to
statutes and documents in general. And this rule would obtain whether the omission occurred in the
original document or in the copy alone. In either case, the court may and should correct the error by
supplying the omitted word or words.

In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su

redaccion se ha incurrido en omisiones que la razon y el sentido cumon pueden suplirlas sin
altenar ni tergiversar la intencion tanto del testador como la de los tres testigos que
intervenieron en el otorgamiento de la misma. Teniendo en cuenta la fraseologia de la
segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y
en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para
dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de
atestacion surtan efectos.

La interpretacion que se acaba de dar a la clausula de atestacion y la correccion de los

errores gramanticales de que misma adolece, incluyedo la insercion del verbo "firmamos"
que se omitio involuntariamente, esta de acurdo con las reglas fundamentales de
interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la
intencion del que haya redactado el instrumento (art 286, Cod. de Proc. Civil;
Pecson contra Coronel, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pages. 225, 226).

La solucion que se acaba de dar al asunto es la que se halla mas conforme con la justicia en
vista de que no se ha presentado prueba alguna que insinue siquiera que en el otorgamiento
del testamiento se ha cometido dolo o fraude con el animo de perjudicar a cualquiera.
Testamentaria de Emiliano Alcala, 40 Gaz. Of., 14. Supplemento, No. 23, pags. 131, 132.)

From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will: but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50 and 51, the same work says: "To aid the court in
ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules
been established for guidance in the construction or interpretation to be placed upon such a will, and
in general a will should be construed according to these established rules of construction." And
referring to construction of statues which, as has been said, is applicable to construction of
documents, C. J. S., in Vol. 59, p. 992, tells us that "Where it appears from the context that certain
words have been inadvertently from a statute, the court may supply such words as are necessary to
complete the sense, and to express the legislative intent."

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills 840; 57 Am. Jur., 720.)

But let it be assumed, for the sake of this decision only, that the attestation clause was drawn exactly
as it was copied in Toledo's record on appeal, was the mistake fatal? Was it, or was it not, cured by
the testator's own declaration? to wit: "En testimonio de lo cual, firmo este mi testamento y en el
margen izquierdo de cada una de sus dos paginas utiles con la clausula de atestiguamiento en
presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de
atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga,
I. F., el dia 27 de marzo de mil novecientos treinta y nueve." The answer is in the negative.
As early as 1922 a similar case, in which the validity of the will was sustained, found its way into this
court. See Aldaba vs. Roque, 43 Phil., 378. That case was more than foursquare behind the case at
bar. There the departure from the statutory formality was more radical, in that the testator took
charge of writing the entire attestation clause in the body of the will, the witnesses limiting their role
to signing the document below the testator's signature. Here, at the most, the testator took away
from the witnesses only a small part of their assigned task, leaving to them the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in
banc, through Mr. Justice Villamor said in the Adalba-Roque case (syllabus):

When the attestation clause is signed by the witnesses to the instruments, besides the testator, such
attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of
Act No. 2645, even though the facts recited in said attestation clause appear to have been made by
the testator himself.

That ruling should set the present case at rest unless we want to revert to the old, expressly
abandoned doctrine, in a long line of what we believe to be better-considered decisions.

This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there have been
noticeable in the Philippines two divergent tendencies in the lie of wills — the one being planted on
strict construction and the other on liberal construction. A late example of the former views be found
in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement of the
law. The basic rule in the other direction, predicated on reason, is Abangan vs. Abangan (1919), 40
Phil., 476, oft-cited approvingly in later decisions."

In the Abangan case, a unanimous court, speaking through Mr. Justice Avanceña, later Chief
Justice, observed:

"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 primodial
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 frustrative of the testator's last will, must be
disregarded."

Subsequent decisions which followed and adopted the Abangan principle were: Avera vs.
Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922), 43
Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil.,
922; Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs.
Cartagena (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de N.
Ozoa (1933), 57 J. F., 1007; Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939), 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl.,
No. 3, p. 196; Leynez vs. Leynez (1939), 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941), 40 Off. Gaz.,
1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De Villa (1941), 40 Off. Gaz., 14th
Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46 Off. Gaz., Suppl. No. 1, p. 211.

It is objected that "If we cure a deficiency by means of inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same
question might well have been asked by the opponents of the new trends in the cases above cited.
But the so-called liberal rule 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 within 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.

The case at hand comes within the bounds thus defined if the witnesses here purposely omitted or
forgot to say that the testator signed the will in their presence, the testator said that he did and the
witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and
none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this
court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance.
It has been said, and experience has shown, that the mechanical system of construction has
operated more to defeat honest wills than prevent fraudulent ones. That, must be conceded, would
be the effect in this case if the will under consideration were rejected. For the adverse party now
concedes the genuineness of the document. At any rate, the genuineness is super obvious, and
there is not the slightest insinuation of undue pressure, mental incapacity of the testator, or fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be
like lifting one's self by his own bootstraps." The simile does not look to us quite well placed. There is
no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive
law. The rationale of this decision is that he is not. If we were to make a metaphorical comparison, it
would be more correct to say that a man can and generally does himself pull the bootstraps when he
puts his boots on.

Coming to execution of wills, we see no legitimate, practical reason for objecting to the testator
instead of the witnesses certifying that he signed the will in the presence of the latter. The will is of
the testator's own making, the intervention of attesting witnesses being designed merely to protect
his interest. If the sole purpose of the statute in requiring the intervention of witnesses is to make it
certain that the testator has definite and complete intention to pass his property, and to prevent, as
far as possible, any chance of substituting one instrument for another (1 Page on Wills, 481), what
better guaranty of the genuineness of the will can there be than a certification by the testator himself
in the body of the will so long as the testator's signature is duly authenticated? Witnesses may
sabotage the will by muddling and bungling it or the attestation clause. For the testator, who is
desirous of making a valid will, to do so would be a contradiction. If the formalities are only a means
to an end and not the end themselves, and that end is achieved by another method slightly from the
prescribed manner, what has been done by the testator and the witnesses in the execution of the
instant will should satisfy both law and conscience.

A second ground of attack on the questioned will is that the first page or sheet thereof does not bear
the testator's signature. The discussion on the correctness of the copy of the attestation clause
amply answers this objection in fact, the appellee's case is much stronger on this point for the
reason that there is not only speculative but also positive basis for the conclusion that the testator's
signature was affixed to the first page of the original. Both the testator and the attesting witnesses
stated in the will and in the attestation clause, respectively, that the former signed both pages or
sheets of the testament.

Upon the foregoing consideration, the order of the probate court is affirmed with costs.
A motion dated February 17, 1953, was filed after the motion for reconsideration was deliberated
and voted upon, in behalf of the minor children of Carlos Worrel, who was a residuary legatee under
the will and who is alleged to have died on February 6, 1949. The motion prays that a guardian ad
litem be appointed for the said children, and allowed to intervene and file "A Supplementary
Memorandum in Support of Appellant's (Appellee's?) Motion for reconsideration." Counsel for the
appellant objects to the motion on the ground that the movants having only a contingent interest
under the will are not of right entitled to intervene.

As this case has already been considerably delayed and thoroughly considered and discussed from
all angles, it is the sense of the court that the children's intervention with the consequent further
delay of the decision would not serve the best interest of the parties. For this reason, the motion is
denied.

Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.

Padilla and Reyes, JJ., dissent.

JUGO, PABLO and BENGZON, JJ., dissenting:

I dissent on the ground set forth in my opinion rendered in this case.

SECOND DIVISION

G.R. Nos. 140371-72 November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,

vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO,
ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D.
SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.

DECISION
AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of preliminary injunction
and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and
October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition
for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-
90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of Segundo C.
Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate
of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying for the
appointment of private respondent Elisa D. Seangio–Santos as special administrator and guardian
ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased
Segundo executed a general power of attorney in favor of Virginia giving her the power to manage
and exercise control and supervision over his business in the Philippines; 3) Virginia is the most
competent and qualified to serve as the administrator of the estate of Segundo because she is a
certified public accountant; and, 4) Segundo left a holographic will, dated September 20, 1995,
disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a will, the
intestate proceedings are to be automatically suspended and replaced by the proceedings for the
probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc.
No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that the probate
proceedings should take precedence over SP. Proc. No. 98–90870 because testate proceedings
take precedence and enjoy priority over intestate proceedings.2

The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at
anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa
akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia
Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon
gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel
Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng
lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha
mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3

(signed)

Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396
were consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings5 primarily
on the ground that the document purporting to be the holographic will of Segundo does not contain
any disposition of the estate of the deceased and thus does not meet the definition of a will under
Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory
heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which
would result to intestacy. Such being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred
from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for
probate when on the face of the will it is clear that it contains no testamentary disposition of the
property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority
of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private
respondents question the intrinsic and not the extrinsic validity of the will; 3) disinheritance
constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition does not apply
because Segundo’s will does not constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly
shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he
other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the
widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir
in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of
discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100
(1987)] has made its position clear: "for … 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 … 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 (underscoring
supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for
lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement as
to costs.

SO ORDERED.7

Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN
ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE
76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR
INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED
THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR’S WILL IS VOID
ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE
INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT
THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW;

II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO
RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE
FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON EXISTS AND THAT THE
WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
 III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE

INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which
respectively mandate the court to: a) fix the time and place for proving the will when all concerned
may appear to contest the allowance thereof, and cause notice of such time and place to be
published three weeks successively previous to the appointed time in a newspaper of general
circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the testator
Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly
states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir.
Thus, there is no preterition in the decedent’s will and the holographic will on its face is not
intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with
the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of
Segundo were preterited in the holographic will since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically
and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate
case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and
will render nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated, signed and
written by him in his own handwriting. Except on the ground of preterition, private respondents did
not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s intention
of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In
effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected
through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the Court believes that the incidents,
taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and
that the matter presents a sufficient cause for the disinheritance of a child or descendant under
Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
 (2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes
the testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such
child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by
the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly deduced from the
terms of the instrument, and while it does not make an affirmative disposition of the latter’s property,
the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator Segundo in favor of those who
would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form
and within the limits prescribed by law, must be recognized as the supreme law in succession. All
rules of construction are designed to ascertain and give effect to that intention. It is only when the
intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an expert,
taking into account the circumstances surrounding the execution of the instrument and the intention
of the testator.12 In this regard, the Court is convinced that the document, even if captioned
as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and
was executed by him in accordance with law in the form of a holographic will. Unless the will is
probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct
line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to
bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did
not institute an heir16 to the exclusion of his other compulsory heirs. The mere mention of the name
of one of the petitioners, Virginia, in the document did not operate to institute her as the universal
heir. Her name was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.1âwphi 1

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code
provides that no will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to
dispose of his property may be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch
21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to
reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of Segundo
Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination of
the aforesaid testate proceedings.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-24561 June 30, 1970

MARINA DIZON-RIVERA, executrix-appellee,

vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA
DIZON and LILIA DIZON, oppositors-appellants.

Punzalan, Yabut & Eusebio for executrix-appellee.

Leonardo Abola for oppositors-appellants.

TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of Pampanga approving the Executrix-appellee's
project of partition instead of Oppositors-Appellants' proposed counter-project of partition.1

On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga, and
was survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas
V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina
Dizon, and a legitimate granddaughter named Lilia Dizon, who is the only legitimate child and heir of
Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these seven compulsory
heirs (except Marina Dizon, the executrix-appellee) are the oppositors-appellants.

The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango
dialect. Named beneficiaries in her will were the above-named compulsory heirs, together with
seven other legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon,
Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano Tiambon.

In her will, the testatrix divided, distributed and disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of land appraised at P5,849.60, household furniture valued
at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga Sugar
Development Company valued at P350.00) among her above-named heirs.

Testate proceedings were in due course commenced2 and by order dated March 13, 1961, the last
will and testament of the decedent was duly allowed and admitted to probate, and the appellee
Marina Dizon-Rivera was appointed executrix of the testatrix' estate, and upon her filing her bond
and oath of office, letters testamentary were duly issued to her.

After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of Angeles, Pampanga
was appointed commissioner to appraise the properties of the estate. He filed in due course his
report of appraisal and the same was approved in toto by the lower court on December 12, 1963
upon joint petition of the parties.

The real and personal properties of the testatrix at the time of her death thus had a total appraised
value of P1,811,695.60, and the legitime of each of the seven compulsory heirs amounted to
P129,362.11.3 (¹/7 of the half of the estate reserved for the legitime of legitimate children and descendants).4 In her will, the testatrix
"commanded that her property be divided" in accordance with her testamentary disposition, whereby she devised and bequeathed specific
real properties comprising practically the entire bulk of her estate among her six children and eight grandchildren. The appraised values of
the real properties thus respectively devised by the testatrix to the beneficiaries named in her will, are as follows:

1. Estela Dizon ....................................... P 98,474.80

2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon ....................................... 131,987.41
6. Lilia Dizon .............................................. 72,182.47
7. Marina Dizon ..................................... 1,148,063.71
8. Pablo Rivera, Jr. ...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01

The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the
estate as follows:
 (1) with the figure of P129,254.96 as legitime for a basis Marina (exacultrix-appellee)
and Tomas (appellant) are admittedly considered to have received in the will more
than their respective legitime, while the rest of the appellants, namely, Estela,
Bernardita, Angelina, Josefina and Lilia received less than their respective legitime;

(2) thus, to each of the latter are adjudicated the properties respectively given them
in the will, plus cash and/or properties, to complete their respective legitimes to
P129,254.96; (3) on the other hand, Marina and Tomas are adjudicated the
properties that they received in the will less the cash and/or properties necessary to
complete the prejudiced legitime mentioned in number 2 above;

(4) the adjudications made in the will in favor of the grandchildren remain
untouched. <äre||anº•1àw>

On the other hand oppositors submitted their own counter-project of partition dated
February 14, 1964, wherein they proposed the distribution of the estate on the
following basis:

(a) all the testamentary dispositions were proportionally reduced to the value of one-
half (½) of the entire estate, the value of the said one-half (½) amounting to
P905,534.78; (b) the shares of the Oppositors-Appellants should consist of their
legitime, plus the devises in their favor proportionally reduced; (c) in payment of the
total shares of the appellants in the entire estate, the properties devised to them plus
other properties left by the Testatrix and/or cash are adjudicated to them; and (d) to
the grandchildren who are not compulsory heirs are adjudicated the properties
respectively devised to them subject to reimbursement by Gilbert D. Garcia, et al., of
the sums by which the devise in their favor should be proportionally reduced.

Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix
of practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to
the amounts set forth after the names of the respective heirs and devisees totalling one-half thereof
as follows:

1. Estela Dizon ........................................... P 49,485.56

2. Angelina Dizon ......................................... 53,421.42
3. Bernardita Dizon ....................................... 26,115.04
4. Josefina Dizon .......................................... 26,159.38
5. Tomas V. Dizon ......................................... 65,874.04
6. Lilia Dizon .................................................. 36,273.13
7. Marina Dizon ........................................... 576,938.82
8. Pablo Rivera, Jr. ......................................... 34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80

T o t a l ................................................... P905,534.78

while the other half of the estate (P905,534.78) would be deemed as constituting the legitime of the
executrix-appellee and oppositors-appellants, to be divided among them in seven equal parts of
P129,362.11 as their respective legitimes.

The lower court, after hearing, sustained and approved the executrix' project of partition, ruling that
"(A)rticles 906 and 907 of the New Civil Code specifically provide that when the legitime is impaired
or prejudiced, the same shall be completed and satisfied. While it is true that this process has been
followed and adhered to in the two projects of partition, it is observed that the executrix and the
oppositors differ in respect to the source from which the portion or portions shall be taken in order to
fully restore the impaired legitime. The proposition of the oppositors, if upheld, will substantially
result in a distribution of intestacy, which is in controversion of Article 791 of the New Civil Code"
adding that "the testatrix has chosen to favor certain heirs in her will for reasons of her own, cannot
be doubted. This is legally permissible within the limitation of the law, as aforecited." With reference
to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary
of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their
impaired legitimes, the lower court ruled that "(T)he payment in cash so as to make the proper
adjustment to meet with the requirements of the law in respect to legitimes which have been
impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes of
the testatrix."

From the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise
anew the following issues: .

1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises
imputable to the free portion of her estate, and therefore subject to reduction;

2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely
to demand completion of their legitime under Article 906 of the Civil Code; and

3. Whether the appellants may be compelled to accept payment in cash on account of their legitime,
instead of some of the real properties left by the Testatrix;

which were adversely decided against them in the proceedings below.

The issues raised present a matter of determining the avowed intention of the testatrix which is "the
life and soul of a will."5 In consonance therewith, our Civil Code included the new provisions found in
Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in
case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and
"(T)he words of a will are to receive an interpretation which will give to every expression some effect,
rather than one which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva vs. Juico6 for
violation of these rules of interpretation as well as of Rule 123, section 59 of the old Rules of
Court, 7 the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's decision and stressed that "the intention and
wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative
to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless
it clearly appears that his intention was otherwise." 8

The testator's wishes and intention constitute the first and principal law in the matter of testaments,
and to paraphrase an early decision of the Supreme Court of Spain, 9 when expressed clearly and precisely in his
last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and
devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and
restricted by these fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the
nature of a partition of her estate by will. Thus, in the third paragraph of her will, after commanding
that upon her death all her obligations as well as the expenses of her last illness and funeral and the
expenses for probate of her last will and for the administration of her property in accordance with
law, be paid, she expressly provided that "it is my wish and I command that my property be divided"
in accordance with the dispositions immediately thereafter following, whereby she specified each
real property in her estate and designated the particular heir among her seven compulsory heirs and
seven other grandchildren to whom she bequeathed the same. This was a valid partition 10of her
estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code,
providing that "(S)hould 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."
This right of a testator to partition his estate is subject only to the right of compulsory heirs to their
legitime. The Civil Code thus provides the safeguard for the right of such compulsory heirs:

ART. 906. Any compulsory heir to whom the testator has left by any title less than the
legitime belonging to him may demand that the same be fully satisfied.

ART. 907. Testamentary dispositions that impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of the same, insofar as they may be
inofficious or excessive.

This was properly complied with in the executrix-appellee's project of partition,

wherein the five oppositors-appellants namely Estela, Bernardita, Angelina, Josefina
and Lilia, were adjudicated the properties respectively distributed and assigned to
them by the testatrix in her will, and the differential to complete their respective
legitimes of P129,362.11 each were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly
were favored by the testatrix and received in the partition by will more than their
respective legitimes.

2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old
Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only
amendment in the provision was that Article 1080 "now permits any person (not a testator, as under
the old law) to partition his estate by act inter vivos." 11 This was intended to repeal the then
prevailing doctrine 12 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. Authoritative commentators doubt the efficacy of the
amendment 13 but the question does not here concern us, for this is a clear case of partition by will,
duly admitted to probate, which perforce must be given full validity and effect. Aside from the
provisions of Articles 906 and 907 above quoted, other codal provisions support the executrix-
appellee's project of partition as approved by the lower court rather than the counter-project of
partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition
or partition made by the testatrix to one-half and limit the same, which they would consider as mere
devises or legacies, to one-half of the estate as the disposable free portion, and apply the other half
of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would
amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to
Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil
Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property
adjudicated to him."

3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the deceased testator
Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion, as against
adverse claims of other compulsory heirs, as being a partition by will, which should be respected
insofar as it does not prejudice the legitime of the compulsory heirs, in accordance with Article 1080
of the Civil Code. In upholding the sale made by Concepcion to a stranger of the plantations thus
partitioned in her favor in the deceased's will which was being questioned by the other compulsory
heirs, the Court ruled that "Concepcion Teves by operation of law, became the absolute owner of
said lots because 'A partition legally made confers upon each heir the exclusive ownership of the
property adjudicated to him' (Article 1091, New Civil Code), from the death of her ancestors, subject
to rights and obligations of the latter, and, she can not be deprived of her rights thereto except by the
methods provided for by law (Arts. 657, 659, and 661, Civil Code). 15 Concepcion Teves could, as
she did, sell the lots in question as part of her share of the proposed partition of the properties,
especially when, as in the present case, the sale has been expressly recognized by herself and her
co-heirs ..."

4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the
nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her
assignment or distribution of her real properties to the respective heirs. From this erroneous
premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs
passes to them by operation of law and that the testator can only dispose of the free portion, that is,
the remainder of the estate after deducting the legitime of the compulsory heirs ... and all
testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to
be taken from the remainder of the testator's estate constituting the free portion." 16

Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific
properties to specific heirs cannot be considered all devises, for it clearly appear from the whole
context of the will and the disposition by the testatrix of her whole estate (save for some small
properties of little value already noted at the beginning of this opinion) that her clear intention was to
partition her whole estate through her will. The repeated use of the words "I bequeath" in her
testamentary dispositions acquire no legal significance, such as to convert the same into devises to
be taken solely from the free one-half disposable portion of the estate. Furthermore, the testatrix'
intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs
and not as mere devisees, and that said dispositions were therefore on account of the respective
legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I
likewise command that in case any of those I named as my heirs in this testament any of them shall
die before I do, his forced heirs under the law enforced at the time of my death shall inherit the
properties I bequeath to said deceased." 17

Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the
estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides
that "(O)ne who has compulsory heirs may dispose of his estate provided he does not contravene
the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors'
own theory of bequests, the second paragraph of Article 912 Civil Code covers precisely the case of
the executrix-appellee, who admittedly was favored by the testatrix with the large bulk of her estate
in providing that "(T)he devisee who is entitled to a legitime may retain the entire property,provided
its value does not exceed that of the disposable portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix
constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other
cited codal provisions upholding the primacy of the testator's last will and testament, have to be
respected insofar as they do not prejudice the legitime of the other compulsory heirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed
subject to collation, if the testator has not otherwise provided, but the legitime shall in any case
remain unimpaired" and invoking of the construction thereof given by some authorities that "'not
deemed subject to collation' in this article really means not imputable to or chargeable against the
legitime", while it may have some plausibility 19 in an appropriate case, has no application in the
present case. Here, we have a case of a distribution and partition of the entire estate by the testatrix,
without her having made any previous donations during her lifetime which would require collation to
determine the legitime of each heir nor having left merely some properties by will which would call
for the application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime
of the heirs is here determined and undisputed.
5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues
are likewise necessarily resolved. Their right was merely to demand completion of their legitime
under Article 906 of the Civil Code and this has been complied with in the approved project of
partition, and they can no longer demand a further share from the remaining portion of the estate, as
bequeathed and partitioned by the testatrix principally to the executrix-appellee.

Neither may the appellants legally insist on their legitime being completed with real properties of the
estate instead of being paid in cash, per the approved project of partition. The properties are not
available for the purpose, as the testatrix had specifically partitioned and distributed them to her
heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention
of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real
properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report
of the properties of the estate as filed by the commissioner appointed by the lower court was
approved in toto upon joint petition of the parties, and hence, there cannot be said to be any
question — and none is presented — as to fairness of the valuation thereof or that the legitime of the
heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of
the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides no legal
basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights
to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code)
and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never
be settled if there were to be a revaluation with every subsequent fluctuation in the values of the
currency and properties of the estate. There is evidence in the record that prior to November 25,
1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her
inheritance, which, per the parties' manifestation, 20 "does not in any way affect the adjudication
made to her in the projects of partition of either party as the same is a mere advance of the cash that
she should receive in both projects of partition." The payment in cash by way of making the proper
adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as
to give effect to the last will of the testatrix has invariably been availed of and sanctioned. 21 That her
co-oppositors would receive their cash differentials only now when the value of the currency has
declined further, whereas they could have received them earlier, like Bernardita, at the time of
approval of the project of partition and when the peso's purchasing value was higher, is due to their
own decision of pursuing the present appeal.

ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Barredo and
Villamor, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH
PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR
DE FAUSTO, respondents-appellees.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba,
Nueva Ecija, with a total area of around forty- four hectares That devise was made in the will of the
late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who would
study for the priesthood.

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court
from the decision of the Court of Appeals affirming the order of the probate court declaring that the
said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of Victoria,
Tarlac, CA-G.R. No. 24319-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935,
leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of
Tarlac in its order of December 5, 1935. Named as devisees in the will were the testators nearest
relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora
Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.

In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate
comprehension of the testamentary provisions):

Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en
el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530, mide
16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. cuadrados de
superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas
cercano que estudie la carrera eclesiatica hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado son;

(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este
legado;

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar
y administrar de este legado al principiar a curzar la Sagrada Teologio, y ordenado
de Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de
administrar y gozar de este legado al dejar de continuar sus estudios para ordenarse
de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año VEINTE
(20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual
 legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la
administracion de esto pasara a cargo del actual Parroco y sus sucesores de la
Iglecia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda

expresado, pasara la administracion de este legado a cargo del actual Parroco
Catolico y sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate legado, acumulara, anualmente todos los

productos que puede tener estate legado, ganando o sacando de los productos
anuales el CINCO (5) por ciento para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco celebrar
cada año, depositando todo lo restante de los productos de estate legado, en un
banco, a nombre de estate legado.

To implement the foregoing bequest, the administratix in 1940 submitted a project containing the
following item:

5. LEGACY OF THE CHURCH

That it be adjudicated in favor of the legacy purported to be given to the nearest male
relative who shall take the priesthood, and in the interim to be administered by the
actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines,
or his successors, the real properties hereinbelow indicated, to wit:

Ti L Are T Ass.
tl
e ot a in ax Val
N N Ha D ue
o.
o. s. ec
.

T 3 1.6 1 P
- 6 249 8 340.
6 6 7 00
5 3 4
3 0
0

T 3 24. 1 7,29
- 4 299 8 0.00
6 4 8 7
5 5 3
4 - 0
8 C

T 3 6.2 1 1,88
- 6 665 8 0.00
6 7 7
5 0 3
2 6
5
 T 3 11. 1 3,58
- 6 925 8 0.00
6 6 1 7
5 6 3
2 3
1

Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed
that after payment of the obligations of the estate (including the sum of P3,132.26 due to the church
of the Victoria parish) the administratrix should deliver to the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and
implications of Father Rigor's bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix and
the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the
same were not delivered to that ecclesiastic. The testate proceeding remained pending.

About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish
priest of Victoria filed in the pending testate proceeding a petition praying for the appointment of a
new administrator (succeeding the deceased administration Florencia Rigor), who should deliver to
the church the said ricelands, and further praying that the possessors thereof be ordered to render
an accounting of the fruits. The probate court granted the petition. A new administrator was
appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the
ricelands to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the
bequest be d inoperative and that they be adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever
studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by the
parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared
the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of June
28, 1957. The parish priest filed two motions for reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of December 10, 1957
on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the grandson of
his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon
City. The administrator was directed to deliver the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male relative who would take the holy orders but that
such trust could exist only for twenty years because to enforce it beyond that period would violate
"the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary provisions
so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no
one among the testator's nearest male relatives had studied for the priesthood and not because the
trust was a private charitable trust. According to the legal heirs, that factual finding is binding on this
Court. They point out that appellant priest's change of theory cannot be countenanced in this appeal
.

In this case, as in cases involving the law of contracts and statutory construction, where the intention
of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the
determination of the testator's intention which is the law of the case (dicat testor et erit lex. Santos
vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).

The will of the testator is the first and principal law in the matter of testaments. When his intention is
clearly and precisely expressed, any interpretation must be in accord with the plain and literal
meaning of his words, except when it may certainly appear that his intention was different from that
literally expressed (In re Estate of Calderon, 26 Phil. 333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a
will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)

One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into consideration the circumstances under which it was
made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the
provisions of his will.

1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could continue enjoying and administering the same up
to the time of his death but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.

4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses
with prayers for the repose of the souls of Father Rigor and his parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration
of the riceland would pass to the incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as contemplated above, the
administration of the ricelands would be under the responsibility of the incumbent parish priest of
Victoria and his successors, and

7. That the parish priest-administrator of the ricelands would accumulate annually the products
thereof, obtaining or getting from the annual produce five percent thereof for his administration and
the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for
each year, depositing the balance of the income of the devise in the bank in the name of his
bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to devise
the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been
ordained a priest, he was excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in
two situations: one, during the interval of time that no nearest male relative of the testator was
studying for the priesthood and two, in case the testator's nephew became a priest and he was
excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or
how long after the testator's death would it be determined that he had a nephew who would pursue
an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between
the parish priest of Victoria and the testator's legal heirs.

Interwoven with that equivocal provision is the time when the nearest male relative who would study
for the priesthood should be determined. Did the testator contemplate only his nearest male
relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime
after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the time of his
death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee
or legatee must be living at the moment the succession opens, except in case of representation,
when it is proper" (Art. 1025, Civil Code).

The said testamentary provisions should be sensibly or reasonably construed. To construe them as
referring to the testator's nearest male relative at anytime after his death would render the provisions
difficult to apply and create uncertainty as to the disposition of his estate. That could not have been
his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified
his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact
date of his death or state with certitude what category of nearest male relative would be living at the
time of his death, he could not specify that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he had to use the term "nearest male
relative".

It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao,
the testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that
contention, the legal heirs presented in the lower court the affidavit of Beatriz Gamalinda, the
maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her own
son, Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the priesthood
at the San Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that devise
for his nearest male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by
the parish priest of Victoria before the latter filed his second motion for reconsideration which was
based on the ground that the testator's grandnephew, Edgardo, was studying for the priesthood at
the San Jose Seminary.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961.
For that reason, the legal heirs apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellant's brief).

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to
the testator's nephew who was living at the time of his death, when his succession was opened and
the successional rights to his estate became vested, rests on a judicious and unbiased reading of
the terms of the will.

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera
eclesiatica" would include indefinitely anyone of his nearest male relatives born after his death, he
could have so specified in his will He must have known that such a broad provision would suspend
for an unlimited period of time the efficaciousness of his bequest.

What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"?
The reasonable view is that he was referring to a situation whereby his nephew living at the time of
his death, who would like to become a priest, was still in grade school or in high school or was not
yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before
the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then
he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that
event, the trusteeship would be terminated.

Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in
1935 he had a nephew who was studying for the priesthood or who had manifested his desire to
follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that
"not male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal).

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable
conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was likewise
inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in is favor
assumes that he was a trustee or a substitute devisee That contention is untenable. A reading of the
testamentary provisions regarding the disputed bequest not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a
nephew who became a priest.

It should be understood that the parish priest of Victoria could become a trustee only when the
testator's nephew living at the time of his death, who desired to become a priest, had not yet entered
the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies
did not arise, and could not have arisen in this case because no nephew of the testator manifested
any intention to enter the seminary or ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code,
now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be
merged into the estate, except in cases of substitution and those in which the right of accretion
exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la herencia,
fuera de los casos de sustitucion y derecho de acrecer").

This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides
that legal succession takes place when the will "does not dispose of all that belongs to the testator."
There being no substitution nor accretion as to the said ricelands the same should be distributed
among the testator's legal heirs. The effect is as if the testator had made no disposition as to the
said ricelands.

The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may
be mixed succession. The old rule as to the indivisibility of the testator's win is no longer valid. Thus,
if a conditional legacy does not take effect, there will be intestate succession as to the property
recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the
petitioner.

SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10763 April 29, 1961

DELFIN YAMBAO, plaintiff-appellant,

vs.
ANGELINA GONZALES, ET AL., defendants-appellees.

Marcial G. Mendiola for plaintiff-appellant.

Onofre P. Guevara for defendants-appellees.

BAUTISTA ANGELO, J.:

This is an action filed by Delfin Yambao against Angelina Gonzales and Maria Pablo praying that the
latter be ordered to appoint and employ him as tenant during his lifetime on the parcels of land
bequeathed to and inherited by them from Maria Gonzales, as well as to deliver to him the value of
the harvests belonging to him as tenant of said parcels of land. In their answer, defendants averred
that the provisions of the will relied upon by plaintiff is not mandatory; that the determination of who
should be the tenant of the land is vested in a special court; and that the present action is not the
proper remedy.

After trial, the court dismissed the complaint for lack of sufficient cause of action. It held that the
provisions of the will relied upon by plaintiff merely amount to a suggestion to the defendants who,
though morally bound, are not legally compelled to follow said suggestion, invoking as authority
Article 797 of the old Civil Code. Plaintiff has appealed.

The pertinent provisions of the will relied upon by appellant read as follows:

Dapat din naman malaman ng dalawa kong tagapagmana na sila MARIA PABLO at
ANGELINA GONZALES na sila ay may dapat TUNGKULIN O GANGPANAN GAYA ng mga
sumusunod:

xxx xxx xxx

(2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo ng bukid habang panahon,
at ang nasabing bukid ay isasailalim ng pamamahala ng Albasea samantalang ang bukid ay
nasa usapin at may utang pa.

It appears that on August 10, 1942, Maria Gonzales executed a will bequeathing to appellees all her
properties situated in Sta. Rosa, Laguna. The will was probated in 1948. Immediately, thereafter,
appellant went to appellees to request that he be placed as tenant of the riceland which, by an
express provision of said will, they were directed to give to him for cultivation, as tenant, and when
they refused alleging that they had already given it to another tenant he filed the present action.

In holding that the provisions of the will relied upon by appellant imposes only a moral but not
a legal obligation, the trial court went on to consider the import of the word "Pahihintulutan"
employed with reference to appellant. In its opinion said word only means to permit or to allow, but
not to direct appellees to appoint appellant as tenant. Rather, it opines, it merely contains a
suggestion to employ because the testatrix did not use the words "ipinaguutos ko" which she used in
connection with other provisions of the will, so that there is no clear indication that it was her
intention to make such provision compulsory.

We believe, however, that the trial court has not properly interpreted the real import of the wish of
the testatrix. Analyzing it carefully we will find that the same contains a clear directive to employ
appellant as may be seen from the words preceding the word "pahihintulutan", which say: "Dapat din
naman malaman ng dalawa kong tagapagmana na sila MARIA PABLO at ANGELINA GONZALES
na sila ay may dapat TUNGKULIN O GANGPANAN GAYA ng mga sumusunod." The words 'dapat
TUNGKULIN O GANGPANAN" mean to do or to carry out as a mandate or directive, and having
reference to the word "pahihintulutan", can convey no other meaning than to impose a duty upon
appellees. To follow the interpretation given by the trial court would be to devoid the wish of the
testatrix of its real and true meaning.

Article 797 of the old Civil Code, invoked by the trial court, is inapplicable. That refers to an
institution of an heir intended to be conditional by providing that a statement to the effect cannot be
considered as a condition unless it appears clearly that such is the intention of the testator. We are
not faced here with any conditional institution of heirship. What we have is a clear-cut mandate
which the heirs cannot fail to carry out.

WHEREFORE, the decision appealed from is reversed. Appellees are hereby ordered to employ
appellant as tenant immediately after this decision has become final. Costs against appellees.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-15737 February 28, 1962

LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant,

vs.
DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate estate of FAUSTA
NEPOMUCENO, defendant-appellee.

Amado G. Salazar for plaintiff-appellant.

Sycip, Salazar, Luna and Associates for defendant-appellee.

REYES, J.B.L., J.:

Subject to this direct appeal to us on points of law is the decision of the Court of First Instance of
Rizal, in its Civil Case No. Q-2809, dismissing plaintiff-appellant's complaint for the recovery of
certain properties that were originally owned by the plaintiff's granduncle, Nicolas Villaflor, and which
he granted to his widow, Doña Fausta Nepomuceno, bequeathing to her "su uso y posesion
mientras viva y no se case en segundas nupcias".

The following facts appear of record: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of
Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing
in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real and personal properties, giving
the other half to his brother Don Fausto Villaflor.

Clause 6th, containing the institution of heirs, reads as follows: .

SEXTO — En virtud de las facultades que me conceden las leyes, instituyo per mis unicos y
universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y
a mi esposa Da. Fausta Nepomuceno para que partan todos mis bienes que me
pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y
legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente: .
 SEPTIMO: — Lego para dispues de mi muerte a mi esposa Da. Fausta Nepomuceno, en
prueba de mi amor y carino, los bienes, alhajas y muebles que a continuacion se expresan; .

OCTAVO: — Que estos legades disfrutaria mi referida esposa Da. Fausta Nepomuceno su
uso y posesion mientras viva y no se case en segundas nupcias, de la contrario, pasara a
ser propiedad estos dichos legados de mi sobrina nieta Leonor Villaflor.

The 12th clause of the will provided, however, that Clauses 6th and 7th thereof would be deemed
annulled from the moment he bore any child with Doña Fausta Nepomuceno. Said Clause 12th
reads as follows: .

DUODECIMO: — Quedan anulados las parrafos 6.0 y 7.0 de este testamento que tratan de
institucion de herederos y los legados que se haran despues de mi muerte a favor de mi
esposa, en el momento que podre tener la dicha de contrar con hijo y hijos legitimos o
legitimados, pues estos, conforme a ley seran mis herederos.

Don Nicolas Villaflor died on March 3, 1922, without begetting any child with his wife Doña Fausta
Nepomuceno. The latter, already a widow, thereupon instituted Special Proceeding No. 203 of the
Court of First Instance of Zambales, for the settlement of her husband's estate and in that
proceeding, she was appointed judicial administratrix. In due course of administration, she submitted
a project of partition, now Exhibit "E". In the order of November 24, 1924, now exhibit "C", the
probate court approved the project of partition and declared the proceeding closed. As the project of
partition, Exhibit "E", now shows Doña Fausta Nepomuceno received by virtue thereof the ownership
and possession of a considerable amount of real and personal estate. By virtue also of the said
project of partition, she received the use and possession of all the real and personal properties
mentioned and referred to in Clause 7th of the will. The order approving the project of partition (Exh.
"C"), however, expressly provided that approval thereof was "sin perjuicio de lo dispuesto en la
clausula 8.o del testamento de Nicolas Villaflor." .

On May 1, 1956, Doña Fausta Nepomuceno died without having contracted a second marriage, and
without having begotten any child with the deceased Nicolas Villaflor. Her estate is now being settled
in Special Proceeding No. Q-1563 in the lower court, with the defendant Delfin N. Juico as the duly
appointed and qualified judicial administrator.

The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the same Leonor Villaflor
mentioned by Don Nicolas Villaflor in his will as his "sobrina nieta Leonor Villaflor".

Plaintiff Leonor Villaflor instituted the present action against the administrator of the estate of the
widow Fausta Nepomuceno, on February 8, 1958, contending that upon the widow's death, said
plaintiff became vested with the ownership of the real and personal properties bequeathed by the
late Nicolas Villaflor to clause 7 of his will, pursuant to its eight (8th) clause. Defendant's position,
adopted by the trial court, is that the title to the properties aforesaid became absolutely vested in the
widow upon her death, on account of the fact that she never remarried.

We agree with appellant that the plain desire and intent of the testator, as manifested in clause 8 of
his testament, was to invest his widow with only a usufruct or life tenure in the properties described
in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow
remarried, her rights would thereupon cease, even during her own lifetime. That the widow was
meant to have no more than a life interest in those properties, even if she did not remarry at all, is
evident from the expressions used by the deceased "uso y posesion mientras viva" (use and
possession while alive) in which the first half of the phrase "uso y posesion" instead of "dominio" or
"propiedad") reinforces the second ("mientras viva"). The testator plainly did not give his widow the
full ownership of these particular properties, but only the right to their possession and use (or
enjoyment) during her lifetime. This is in contrast with the remainder of the estate in which she was
instituted universal heir together with the testator's brother (clause 6).
1äwphï1.ñët

SEXTO: — En virtud de las facultades que me conceden las leyes, instituyo por mis unicos y
universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y
a mi esposa Da. Fausta Nepomuceno para que parten todos mis bienes que me
pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y
legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente.

The court below, in holding that the appellant Leonor Villaflor, as reversionary legatee, could
succeed to the properties bequeathed by clause 7 of the testament only in the event that the widow
remarried, has unwarrantedly discarded the expression "mientras viva," and considered the words
"uso y posesion" as equivalent to "dominio" (ownership). In so doing, the trial court violated Article
791 of the Civil Code of the Philippines, as well as section 59 of Rule 123 of the Rules of Court.

ART. 791. The words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that one is to be preferred which will prevent
intestacy." .

SEC. 59. Instrument construed so as to give effect to all provisions. — In the construction of
an instrument where there are several provisions or particulars, such a construction is, if
possible, to be adopted as will give effect to all." .

Speculation as to the motives of the testator in imposing the conditions contained in clause 7 of his
testament should not be allowed to obscure the clear and unambiguous meaning of his plain words,
which are over the primary source in ascertaining his intent. It is well to note that if the testator had
intended to impose as sole condition the non-remarriage of his widow, the words "uso y posesion
mientras viva" would have been unnecessary, since the widow could only remarry during her own
lifetime.

The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889), expressly enjoins the following:
.

ART. 790. The words of a will are to be taken in their ordinary and grammatical sense,
unless a clear intention to use them in another sense can be gathered, and that other can be
ascertained." .

Technical words in a will are to be taken in their technical sense, unless the context clearly
indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely
by the testator, and that he was unacquainted with such technical sense. (675a)

In consonance with this rule, this Supreme Court has laid the doctrine in In re Estate of Calderon, 26
Phil., 233, that the intention and wishes of the testator, when clearly expressed in his will, constitute
the fixed law of interpretation, and all questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the
testator's words, unless it clearly appears that his intention was otherwise. The same rule is adopted
by the Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero
1915; 23 Oct. 1925).
 La voluntad del testador, clara, precisa y constantemente expresada al ordenar su ultimo
voluntad, es ley unica, imperativa y obligatoria que han de obedecer y cumplir fieldmente
albaceas, legatarios y heredera, hoy sus sucesores, sin que esa voluntad patente, que no ha
menester de interpretaciones, pues no ofrece la menor duda, pueda sustituirse, pues no
ofrece la menor duda, pueda sustituirse por ningun otro criterio de alguna de los
interesados, ni tampoco por el judicial. (Tribunal Supremo of Spain, Sent. 20 March 1918) .

The American decisions invoked by appellee in his brief inapplicable, because they involve cases
where the only condition imposed on the legatee was that she should remain a widow. As already
shown, the testament of Don Nicolas Villaflor clearly and unmistakably provided that his widow
should have the possession and use of the legacies while alive and did not remarry. It necessarily
follows that by the express provisions of the 8th clause of his will, the legacies should pass to the
testator's "sobrinanieta", appellant herein, upon the widow's death, even if the widow never
remarried in her lifetime. Consequently, the widow had no right to retain or dispose of the aforesaid
properties, and her estate is accountable to the reversionary legatee for their return, unless they had
been lost due to fortuitous event, or for their value should rights of innocent third parties have
intervened.

PREMISES CONSIDERED, the decision appealed from is reversed, and the appellant Leonor
Villaflor Vda. de VILLANUEVA is declared entitled to the ownership and fruits of the properties
described in clause 7 of the will or testament, from the date of the death of Doña Fausta
Nepomuceno. The records are ordered remanded to the court of origin for liquidation, accounting
and further proceedings conformably to this decision. Costs against the Administrator-appellee.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon and De Leon, JJ.,
concur.
Labrador, J., took no part.