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Republic of the Philippines alone or in those of his grandparents Edward and Antonina,

SUPREME COURT but even if he had promised to sell its participation in the
Manila
estate of his grandfather and grandmother, the promise of
sale in terms of the latter property is null and gun denin
EN BANC value because it refers to selling future inheritance. "On
future inheritance - says the Spanish Civil Code - you may,
G.R. No. L-5561 January 26, 1954 however, enter into other contracts than those whose
purpose is to practice the division between living a flow
LAZARO MONDOÑIDO, demandante-apelante, according to art. 1056." (Art. 1271, par. 2. º Arroyo against
vs. Gerona, 58 Phil., 245; Tordilla against Tordilla, 60 Phil.,
PRESCA ALAURA VDA. DE RODA, como administradora
del Abintestato de Ricardo de Roda, demandada-apelada. 172.) Antonina Ricardo Sepulveda lived even if awarded the
scriptures, but there are zero in For goods that Ricardo
recibria the intestate of his grandfather Edward, because
PABLO, J.:
such goods were already in process relict of court settlement
when the otorgo.Los Ricardo rights to succession are
On 24 and February 27, 1929 Ricardo de Roda awarded two
transmitted by operation of law from the time of death (art .
public writings (Exhs. A and B), forcing Mondoñido Lazaro
657, Code Civ Spanish.) Ricardo was already owner of the
sell a portion of land which was to inherit from their
3/24 parts of such property, by way of royal heritage,
grandparents, receiving P200 as advance payment. At the
present and future.
time of the granting of such deeds were already legal
settlement in the Court of First Instance of Cebu property of The defense of prescription must be estimated: since 1935
his grandfather Eduardo de Roda. With minor differences, when the widow of Richard de Roda had received the
the first document is written as the second. participation of her late husband in real relict of the late
Eduardo de Roda and the plaintiff could enforce the
On March 29, 1950 the plaintiff presented fulfilling demand
scriptures (Exhs. A and B), but he did but only in March 24,
asking the two contracts. The defendant, as administrator of
1950 in which I present demand. 15 years have passed
the goods relict of Richard de Roda, presented two
since, the army of such action ought exercised within the
defenses: (a) that such deeds are void as it concerned
term of ten years in accordance with Article 43, paragraph 1,
future inheritance, and (b) that the action is barred.
of the Code of Civil Procedure.

According to the agreement made, Eduardo Sepulveda


The plaintiff's claim that he should return the amount of
Antonina Roda and grandparents were Richard de Roda.
P200 as baseless prepayment. If the plaintiff had demanded
Edward died in 1905, leaving children and grandchildren as
the fulfillment of the scriptures within the period set by law
heirs. Ricardo, in representation of his father, inherited the
and the defendant had not met, then there would
3/24 parts of the goods of his abuelo.Ricardo died in 1933,
consequido compliance agreement or, failing that, the return
and in 1935 were distributed relict goods Eduardo.Ricardo
of the P200 in addition to the damages that have been
her late grandfather and his sister Roberta received in that
incurred.
to $ or their participation in the legacy of Edward, which was
administered by the widow of Richard, Roberta giving this to For the foregoing reasons, the decision confirms appelada
their participation in the products of that heritage. with costs against the appellant.

Sepulveda Antonina died in 1940, his estate was judicially


Republic of the Philippines
settled and in 1948 awarded to his heirs, children and
SUPREME COURT
grandchildren. In this adjudication the widow of Richard de Manila
Roda had not received any participation because she and
Roberta had agreed that the participation of Richard and EN BANC
Roberta goods Eduardo de Roda would stay in the hands of
the widow of Ricardo and the participation of the own
G.R. No. L-23923 March 23, 1927
brothers in the Sepulveda Antonina goods would receive
Roberta.
ANTONIO Ma. BARRETO, ET AL., plaintiffs-appellants,
vs.
After considering the facts and agreement of the two scripts, AUGUSTO H. TUASON, ET AL., defendants-appellants.
the court dismissed the claim for the reason that these
writings were about future inheritance. Against this decision
ROMUALDEZ, J.:
the plaintiff appealed and argues that these scriptures refer
to goods relict of Edward de Roda and not those of the
More than a century and a quarter ago, in the ancient town
spouses Eduardo and Antonina. No doubt they are written in to Binondo, now one of the districts of the City of Manila,
a way that one can not be sure if Ricardo was selling his Don Antonio Tuason founded a mayorazgo of strict agnation
participation in the estate of his late grandfather Edward upon the third and the remainder of the fifth of all his
properties by an instrument executed to that end, duly By way of counterclaim the defendants ask that plaintiffs
approved by the King of Spain in a cedula issued for that return the pensions received after the year 1917 on account
purpose. of the revenue of the properties which constitute
themayorazgo, as the payments of such pensions were
improper.
It was therein provided, among other things, that the revenue
of the properties so entailed, and all such others as might be
annexed thereto, should be distributed in the proportion of The judgment of the Court of First Instance of Manila before
four-fifths for the first born, and his successors, and one-fifth which the case was tried dismisses the complaint and the
for the other eight children and other descendants of the counterclaim, without costs.
founder, mentioned in the instrument.
Both parties appealed. The plaintiffs contend that the trial
The plaintiffs allege that this disposition constituted a family court erred —
trust (fideicomiso familiar) which thereafter became subject
to the provisions of article 4 of the Statute of Disentailment of
(1) In holding that before the disentailment the
October 11, 1820; that the defendants, and their
possessors of entails were not mere
predecessors, all of whom descend from the lines of the first
usufructuaries of the inalienable properties which
born, have so considered it and have been paying, up to the
constituted the entail.
year 1921, sums of money on account of the fifth of the
revenue of the mayorazgo; that the defendants purchased in
1905 and 1915 the rights of some of the beneficiaries for the (2) In weighing the evidence and in deciding that
said trust; that in the payments of the fifth of the revenue the provision made by the founder, Don Antonio
mentioned, fraud was committed; that the plaintiffs, who are Tuason, in favor of his second-born children and
part of the descendants of four of the eight children who their successors is not a family trust.
were the beneficiaries of the fifth of the revenue, were
without a copy of the instrument of foundation, the protocol
(3) In confusing the charges and encumbrances
of the notary before whom it was acknowledged having
disappeared, and that for this reason they were unaware of referred to in article 7 of the Statute of
their rights and were unable to discover the fraud until the Disentailment with the allowances for support and
year 1922 in which the original of the said Royal Cedula was pensions mentioned in article 10 of the same
discovered in the archives of Seville, Spain; that the statute.
defendants fraudulently obtained a Torrens title in their favor
upon the entailed real estate; that there are now no surviving (4) In failing to give effect to the allegations and
descendants of four of the eight children of the founder who evidence of fraud adduced by plaintiffs with
are beneficiaries of the fifth of the revenue. Plaintiffs respect to the performance of the trust by
conclude by praying that defendants be required to pay defendants.
them, as damages, P500,000, that is, one-half of the family
trust administered by the latter, and that this liability be
enforced against the properties described in paragraph 31 of (5) In holding that the defendants were entitled to
the complaint; that defendants render an account of the obtain, as they did obtain, a Torrens title upon the
receipts, expenses and profits of the said properties from real estate in question, and that the allegation of
February 4, 1874, when they took possession of them, until plaintiffs that they obtained it by fraud is not
December 31, 1921, and from January 1, 1922, until supported by the evidence.
judgment is rendered; that the defendants, jointly and
severally, pay them their share of the liquidation of the (6) In holding that even admitting that the plaintiffs
product of said properties, after deducting the amounts are within the general denomination of
received on account by plaintiffs; that the defendants pay descendants of the founder of the mayorazgo they
legal interest upon such sums as may be adjudicated, are not entitled to receive any part of the revenue,
computed from the filing of the complaint until the complete it not having been demonstrated that they are
payment of the amounts therein demanded. poor.

The defendants interposed several defenses, in the first of (7) In denying the new trial prayed for by plaintiffs.
which they alleged that the Royal Cedula upon which the The defendants assign as error the action of the
foundation rests and the Statutes of Disentailment are court in dismissing their counterclaim.
contrary to plaintiffs' contentions. In their second defense
they allege possession of a Torrens title to the property in
question, free from charges or encumbrances. The third The principal undisputed facts which must be stated as a
defense is that of the prescription of the action here brought. basis for disposing of the questions presented are as
As a fourth defense the defendants Doña Paz Tuazon de follows:
Gonzales, Doña Consuelo Tuason de Quimson, Don Juan
Tuason and Doña Albina Tuason contend that they inherited The mayorazgo now under consideration was created
the share of their father Don Jose Maria Tuason in the February 25, 1794.
properties constituting the endowment of the mayorazgo;
that proceedings were had for the administration of the
testate estate of the said deceased and a committee on On the 4th of June of the same year, 1794, the founder, Don
claims appointed which performed its duty, but that no claim Antonio Tuason, died in Manila.
whatever was presented by any of the plaintiffs; that the
partition of the hereditary properties was decreed and the On August 20, 1795, the mayorazgo was approved by Royal
proceedings in the estate declared to be finally concluded. Cedula.
On October 11, 1820, the Statute of Civil Disentailments was XVII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXVI,
promulgated in Spain. XXVII, XXVIII, XXIX, XXX, XXXI, AND XXXII of the
amended complaint dated November 7, 1923.
On October 31, 1863, a Royal Decree was issued extending
to the overseas provinces the statutes concerning civil II. The facts alleged in paragraphs 3 and 4 of the
disentailments and declaring them to be in force in such first special defense in the answer to the amended
provinces from March 1, 1864. complaint, dated April 16, 1924.

On February 1, 1874, Don Jose Severo Tuason, at that time III. That when Don Jose Severo Tuason died on
the possessor of the entail, executed a will, respecting February 3, 1874, all the properties which
the mayorazgo and transmitting it as such to his first-born constituted themayorazgo passed to his first- born
son, Don Jose Victorino Tuason, and died the third day of son, Don Jose Victoriano Tuason, in accordance
the same month and year. with his will, a certified copy of which is attached,
marked as Exhibit 1.
On February 4, 1874, an inventory was prepared of the
properties left by Don Jose Severo Tuason, among which IV. The facts alleged in paragraphs 6, 7, 8, 9, 10
the mayorazgo was mentioned. and 11, with the exception of the allegation
contained in paragraphs 9 and 10 that the
properties which constituted
On January 31, 1875, a liquidation and partition of the said
the mayorazgo passed freely to Don Jose
properties was made, and the properties of
Victoriano Tuason, which is not accepted by
themayorazgo were preserved and respected as entailed.
counsel for plaintiffs, as this is the question of law
raised by complaint.
On January 25, 1878, Don Jose Victariano Tuason, the first-
born son of the testator, who was at that time thirteen years
V. That none of the plaintiff received any pensions
of age, died in Metz (formerly Germany, now France).
whatever as a charge against the revenue or
products of the properties which constituted
On August 7, 1896, the liquidation and partition of the the mayorazgo at the time when the same passed
property was registered. into the hands of Don Jose Victoriano Tuason, and
with the exception of those who are mentioned in
paragraph 2 of the counterclaim, none of them,
On October 9, 1905, Don Jose Rocha y Ruiz sold to the nor their ancestors, received any pensions
heirs of Don Jose Severo Tuason his share of the fifth of the whatever as a charge upon the revenues or
revenue of the properties of the mayorazgo. products of the properties which constituted
the mayorazgo during the ten years prior to the
On November 16, 1916, Doña Remedios Aragon y Rocha date of the filing of the original complaint.
also sold to the heirs of Don Jose Severo Tuason her share
of the fifth of the said revenues. VI. The facts alleged in paragraph 2 of the second
special defense of said answer to the amended
The books of the defendants show the receipts and complaint.
disbursement relating to the real estate of
the mayorazgo(Exhibit 2) from January, 1904, until VII. The facts alleged in paragraphs 1, 2, 3, and 4
December, 1922. In each year items appear under the
of the fourth special defense of the defendants
heading, "Participations in one-fifth of the products." In the Doña Paz Tuazon de Gonzales, Doña Consuelo
year 1905 an entry appears "Purchase of rights as to one- Tuason de Quimson, Don Juan Tuason, Doña
fifth of products;" in the year 1906, "Purchase of rights to
Albina Tuason contained in said answer to the
one-fifth of the products;" in the year 1910, "Purchase of amended complaint.
rights to one-fifth of the products," and in the year 1911
"Notary's fees for deed of assignment with respect to one-
fifth of the products;" in the year 1912, "Notary's fees for VIII. All the facts alleged in paragraph 2 of the
deeds of assignment as to one-fifth of the product." counterclaim contained in the said answer to the
amended complaint.
In the course of the trial the parties agreed upon certain facts
by means of the following stipulation: IX. That the present assessed value of
the Hacienda Santa Mesa-Diliman is three million
five hundred fifty thousand six hundred forty-six
The parties to the trial the parties agreed upon pesos (P3,550,646); of the Hacienda de
certain facts by means of the following stipulation: Mariquina one million five hundred seven
thousand one hundred forty pesos (P1,507, 140);
The parties to the above entitled cause appear that of the lots and buildings on Calle Rosario five
before this court and agree that the court may hundred forty two thousand three hundred eighty
consider as admitted, without the necessity of two pesos (P542,382); and solely for the purpose
evidence, the following facts: of the decision in this case it is agreed that their
real value as between a purchaser desiring to buy
and a vendor willing to sell said properties is the
I. The facts alleged in paragraphs I, II, III, IV, V, VI, same as their assessed value.
VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII,
X. That the revenue and expenses of the BY (Sgd.) GREGORION ARANETA
properties on calle Rosario are those shown in the Attorneys for Defendants
statement attached, marked as Exhibit 2, and that
said statement is taken from the books of the
The various questions raised by the parties turn upon these
defendants.
fundamental points, namely, (a) the nature of themayorazgo;
(b) the Statute of Disentailment and the conduct of the
XI. That the receipts and expenditures of interested parties and their effects; (c) defenses to this
the Hacienda Santa Mesa- action alleged by defendants; and (d) the persons entitled to
Diliman and Mariquina are also those which the relief prayed for.
appear in the statement attached, marked as
Exhibit 2, and that said statement is taken from the
THE NATURE OF THIS "MAYORAZGO"
books of the defendants.

Its literal text, together with that of the Royal Cedula by


XII. That the receipts and expenditure of
which it was approved and confirmed, is as follows:
the Haciendas Santa Mesa-
Diliman and Mariquina are also those which
appear in the statement attached, marked as Don Carlos, by the grace of God King of Castile,
Exhibit 3, which was also taken from the books of etc., whereas on behalf of you, Don Vicente
the defendants. Dolores Tuason, Captain of Infantry of the Royal
Armies, Lieutenant-Colonel of the Regiment of the
Prince Royal, of the City of Manila, a resident of
XIII. That the stipulation contained in the
the said city, Testamentary Executor of your
preceding paragraphs shall not prevent the
deceased father, Don Antonio Tuason, Lieutenant-
plaintiffs from impugning as improperly charged,
Colonel of the said Royal Armies and Colonel
any of the items appearing in said two statements.
attached to the above-mentioned regiment, it was
made known to me, on the 13th of April of the
XIV. That in the record of the testamentary estate present year, that your said deceased father, on
of the late Don Juan Tuason, case No. 16031, the 25th of February of last year, founded
above-mentioned, a document appears, a copy of a mayorazgo (estate tail) of strict agnation, upon
which is annexed, marked as Exhibit 4. one third and the remainder of the fifth part of all
his property, estate and effects which at that time
were of the value of one hundred and thirty-five
XV. A copy of the deed of partition of the property
thousand pesos, appointing you in the first place
of Don Jose Victoriano Tuason, is attached and
to enjoy the same as his first-born, and after you
marked Exhibit 5.
take your place your eldest son and at his death to
succeed him his eldest son and so on, adding that
XVI. That the plaintiffs, who, as admitted in although the wishes of Don Antonio Tuason in
paragraph 2 of the cross- complaint, collected regard to the accomplishment of said entail in all
from the defendants the sums mentioned in said its parts were very keen, he could not effectuate
paragraph, did so upon receipts preprared by Don them on account of his death, but that the duty of
Augusto Tuason, acting for himself and his carrying them into effect had been imposed upon
brother, and worded as follows: you not only on account of your appointment as
Executor of his Estate, but also as being the first
one selected to possess the mayorazgo, with
Received from Don Augusto Tuason the sum of * * which object, you and your seven brothers
* the part corresponding to me of the fifth of the received during the lifetime of your father your
products of the properties of the
respective paternal legitimes; that your said father
Tuason mayorazgo corresponding to the current made explicit designation of the real estate that
year. was to be entailed with the advertence that if any
amount should be lacking to complete the full
XVI. That Don Jose Rocha y Ruiz Delgado, as the value of the third and the remainder of the fifth, it
first party, and the brothers and sister, Doña should be delivered in cash to be invested in real
Teresa, Don Juan, Don Mariano, Don Demetrio estate specially in lands; that nothing more
and Don Augusto Tuason, as the second parties, remained to be done, according to the attached
executed a contract of assignment of right marked verified copy of the instrument establishing the
Exhibit 6; and likewise Doña Remedios Aragon y said entail which copied literally is as follows:
Rocha and the said brothers and sister entered
into the contract of assignment of rights marked 'I, Don Antonio Tuason, a resident of
Exhibit 7.
this Pueblo of Binondo, beyond the walls of the
City of Manila, in the Philippine Islands,
Manila, P. I., August 30, 1924. Lieutenant- Colonel of Infantry of the Royal Armies
of H. M. the King, and Colonel attached to the
Regiment of Militia of the Prince Royal; being in
ANTONIO SANZ and JOSE GALAN BLANCO good health according to my understanding and in
the full use of my senses and mental faculties,
BY (Sgd.) ANTONIO SANZ desiring on the one hand to recompense the good
Attorneys for Plaintiffs services rendered to my person and my house by
ARANETA & ZARAGOZA my eldest living son Don Vicente Dolores Tuason,
Captain of the Royal Armies, and Lieutenant 'He must uphold all the other rights and privileges
Colonel of the above-mentioned Regiment, and conferred upon my house by the aforesaid Royal
desiring on the other hand to insure in part the Letters Patent and redress all wrongs in violation
permanence of my estate, without diminishing thereof which may be committed or attempted
the legitimes of my other children, so that they against my legitimate descendants, bearing in
may fully enjoy them, and taking into consideration mind that one of my objects, in the establishment
the evanescence of the great family fortunes of this mayorazgo, is to uphold and defend the
which have existed in these Islands on Account of honor that H. M. has designed to confer upon me,
their not having been entailed, I have determined as a proof of the esteem in which I hold those
to established an entail or mayorazgo of the third gracious honors and the deep gratitude I feel on
part and the remnant of the fifth part of all my account of them.
property, as I have stated in my last will and
testament and in my codicils, and with this object
'Item.
in view, making use of the right that has been by
law conferred upon me, I execute this deed with
the following clauses and conditions subject in 'It shall be his duty to bear, as his first surname,
everything to whatever the Royal Audiencia may my family name of Tuason, and so shall he sign
determine and H. M. may decide, to all of which I his name in all judicial and extrajudicial matters;
now and forever assent. he shall also display my coat of arms upon all his
crests and buildings and he who shall fail to do
any of these things, shall forfeit his right of
'First. Having taken stock and inventory of all the
succession to the mayorazgo, and I hereby
property of which I am now possessed, in cash,
declare him excluded therefrom.
real estate, jewelry and other things, I found
myself to be the possessor of an estate of the
value of one hundred and thirty-five thousand 'Item.
pesos, which after having deducted the third and
the fifth, left me a remainder of seventy-two
thousand pesos, which I divided amongst my eight 'It shall be his duty to set apart one-fifth of the net
children, there corresponding to each one of them revenue derive from the entail each year, and that
the sum of nine thousand pesos, which sum was one-fifth part shall be divided into eight parts,
actually delivered to each and every one of them, giving one to each of my eight children, and in
as shown by documents which I have in my their absence, to my grandchildren, but upon the
possession; and the third and the remnant of the understanding that if one or more of my children
should die without succession, the part belonging
fifth, I hereby devote to the aforesaid entail, and if
by accidents of time the total value of my property to them shall be distributed among my
should increase or diminish, so also shall the said grandchildren and other descendants of mine
according to their needs and as prudence may
capital of this entail, which never must be allowed
to exceed the total value of the said third and dictate to him, so that, when the time arrives that
remainder of the fifth. none of my children or grandchildren are alive, it
shall then be always understood that said fifth part
shall be applied to all those of my descendants
'Item. who are poor, the appointment to be made by him
prudently according to their needs and therefore
the possessor of the entail is hereby charged to
'That the possessor of this entail or mayorazgo or
discharge this duty with conscientious scruple.
betterment must take an oath before the Court of
Justice of the territory, to observe and perform all
the clauses and conditions contained herein, and if 'Item.
he should fail to observe and perform any of them,
either totally or in part, he shall lose his right to
'That the holder of this mayorazgo, having
the mayorazgo, which shall pass to the next
successor. legitimate sisters who may desire to marry or to
enter into some convent, shall assign to the former
an appropriate marriage portion, and shall defray,
'Item. for those who may desire to become nuns, all the
expenses that may be necessary up to the
moment that they take the veil, it being well
'That he must keep in his possession the original
understood, nevertheless, that all these expenses
parchment Royal Patent of Nobility of my house,
shall be taken out of the profits and never out of
and in case that it should be lost, he must
the capital.
immediately request a certified copy thereof, from
the Royal Audiencia, the Noble City, or the Court
of Justice of Tondo in whose offices it has been 'Item.
recorded and so likewise he must do with the
certificate of the coat of arms and insignia of my
house, which have been registered in the said 'Bearing in mind that the entailed houses and
Noble City. other real property belonging to
this mayorazgomay be in danger of fire, on
account of their proximity to houses built of nipa,
'Item. bamboo, and other combustible materials, I order
the possessor of the mayorazgo to keep always in
good condition the fire engine from Europe, which
I now have at my home, and which I bought for 'That he must be a Roman Catholic Christian and
that purpose, at the cost of P110. Under no free from the stigma of treason against H. M. and
excuse whatsoever, even in the case of a public the country, or that of any other infamous crime,
calamity, must that engine be taken out of my and should he be guilty of any of these crimes
home, except for the purpose to which I destined while holding the mayorazgo, it is my desire that
it; and should it ever deteriorate or become he shall be considered as having been excluded
useless, he must immediately substitute it with from the same one hour exactly before the time he
another of the same quality, the cost of which committed the said crime, and themayorazgo shall
must be taken out of the earnings of pass to the next in the order of succession which I
themayorazgo; so that if through his guilty establish in this document, and in the same way
negligence any of the properties of let the mayorazgo be understood as having been
the mayorazgoshould be destroyed by fire, as a lost to him who should dare to mortgage it or in
penalty for his non-performance of this condition, any other way impose or levy upon it any charge
he shall be deprived of the mayorazgo and this that may endanger its existence and let everything
shall pass to the next succession but his that he may do against the said mayorazgo be
successor shall be obliged to rebuild the property considered to be null and void.
destroyed, and the cost of this work shall be taken
out of the entire earnings of this mayorazgo, if it be
'Item.
necessary, but never out of the capital, so that he
shall first apply the earnings of the mayorazgo to
whatever expenses may be necessary for the 'As soon as the establishment of
reconstruction of that property, rather than to his this mayorazgo shall be approved, I shall give and
own personal wants. deliver to him the value of the said third and fifth,
deducting the amount that I may consider it
necessary to expend upon the charges on the fifth,
'Item.
and should this amount deducted be found
insufficient for it, the amount that may be lacking
'He shall also provide another fire engine at the shall be taken from the mayorazgo, but should it
expense of this mayorazgo, to the value of P200, be found to be in excess of this requirements, the
more or less, according to its size, and it shall surplus shall be returned to the funds of
always be kept in good condition by the holder of themayorazgo.
this mayorazgo, with the object of rendering
assistance to the public with it; and in case of fire
'Item.
the said engine shall be handled by the servants
of the possessor, or by any other well known and
expert persons; but if by reason of this my desire 'The properties upon which I establish this entail
to help the public in its need bickering and are: My private residence, with every thing that is
controversies should arise or if the strange contained within its fence, as well as the
persons who are to handle the said engine should dependencies that are built close to the said
not do so with all the care that such a delicate and house and fence on the right hand locking towards
expensive engine requires, or should it become a the church of this pueblo of Binondo, which are a
cause of worry and unpleasantness for the shed, with a tile roof, having display tables; a
possessor of the same, then this clause shall not stone house and the lot of land that reaches put to
stand and have the effect that I intended it to have, the estero towards Calle Nueva of this pueblo, all
but I earnestly caution the holder of of its surrounded by a stone wall; the image of Our
the mayorazgo to observe as faithfully as possible Lady of Soterrana of Nieva, dressed in a cloth of
this my pious request, and so attract the blessings beaten gold, and contained within its golden
of heaven, for it is my earnest desire that the tabernacle which is at this date in my private
public shall never lack an engine so necessary as residence; and the organ which is also in the
that fire engine, the cost, repair and replacement reception room of my said residence. The value of
of which must be taken out of the earnings of my residence is declared in my inventory taken the
the mayorazgo. I also enjoin the possessor of twelfth of October, seventeen hundred and
the mayorazgo to be pious and generous in his seventy- nine, adding to its the sum of P2,200 for
expenditures for Divine Worship, the Service of the improvements made on it, and which have not
the King, and the Public Welfare (without vanity) yet been completed; and the value of the other
so that the Lord may bless all his undertakings. properties shall be their purchase price according
to their documents of sale, all of which property is
absolutely free for any encumbrance; and if any
'Item.
amount should be lacking to complete the full
value of the third and remainder of the fifth, it shall
'That the possessor of the mayorazgo must be delivered to the holder of the mayorazgo, in
necessarily be a layman, and never a member of cash, to be invested in real estate, especially in
any religious order under vow of chastity; and lands, which shall also become capital of
should he enter any religious order while holding the mayorazgo; and if before the Royal approval of
the mayorazgo, it shall ipso facto pass to his the mayorazgoI should find some houses
children. appropriate for this purpose, I shall buy them for
this object and I shall declare them to belong to
the mayorazgo.
'Item.
'Item. aforesaid son, Don Vicente Dolores Tuason, on
account of the great service he has rendered me,
particulary in my old age, for which reason I
'It shall be the unavoidable annual duty of the
consider him to have been bettered upon valuable
holder of this mayorazgo, to order a novena of Our
consideration, and threfore he shall enjoy the
Lady of Soterrana (of my special devotion) to be
possession of the same, upon the terms set forth,
made at the Parochial Church of thispueblo of
for all the days of his life, and after his death his
Binondo, setting up the corresponding candles in
ldest son, if he be alive, shall succeed him, and in
Her altar, and on the last day of that novena to
default of his eldest son, he shall be succeeded by
have a public procession of that image through the
the ledest son or grandson of this said eldest son,
streets of this pueblo, as I have been accustomed
and so on, following the direct line of descent; and
to do up to now, with all possible ceremony, and
in the absence of any direct lineal descendant of
for this purpose I now have in my hands the sum
his eldest son, let the possession pass to the
of P2,000 belonging to this pious object (the
eldest living son of the aforesaid Don Vicente, and
(establishment of which has been set forth in my
should there be no son left alive, then to the eldest
aforesaid last will and testament), the earnings of
grandson of his eldest son; and should the male
which sum at the rate of five per centum per
line of my first born be completely extinguished I
annum, which are one hundred pesos, have been
desire that the mayorazgo shall pass unto the
destined to the preservation and maintenance of
eldest son of my deceased son, Don Santos
this act of devotion; he shall also fulfill another
Tuason, and observing in the succession this
pious trust in favor of the souls in Purgatory, to the
same order of procedure, the descendants of my
same amount of two thousand pesos, left by my
other sons shall in their turn be called to the
deceased wife, in my possession, the interest
possessions of the mayoragzo in the successive
whereof, which is one hundred pesos, must be
order of the dates of their birth. While there may
delivered to the parish priest of this pueblo to say
remain a single male descendant of any of my
a collector of masses in the same church during
male children no female descendants of mine shall
the aforesaid novenary of our Lady, giving
enter into the possession of the mayorazgo; for it
six reales as alms to each of these priests for
is my will that the said possession shall pass from
every mass, and if there be any surplus money
male to male in strict agnation. But should there
after the aforesaid novenary it is my will that it be
be absolutely male descendant of the male line, let
totally spent for masses in behalf of the souls in
the descendant of the female line enter into
purgatory, and in order that from now henceforth
possession, observing the same order that has
the needs of both these pious intentions be duly
been prescribed for the male line, and always
attended to, as being one of the objects which I
giving preference to the male rather than to the
have had in mind in establishing this mayorazgo, it
female; it being understood that in this order of
is my will that the aforesaid sum of four thousand
succession the possession shall be given to that
pesos belonging to the two above-mentioned
one of my descendant most nearly related to the
pious foundation be also entailed in the
last lineal descendant of my son Don Vicente who
said mayorazgo. It is also my will that the jewelry
may have held themayorazgo; and in this
of gold, silver and diamonds belonging to the said
aforesaid appointment females shall be qualifed to
image and estined exclusively to Her cult, which I
possess themayorazgo; but the males shall be
have actually in may possession at this date, and
always preferred to the female even though the
which are described in a separte inventory, be
latter may be an elder sister; and in the absence of
also kept in his possession by the holder of
all descendants of the female line of my sons, let
the mayorazgo.
the possession pass to the descendants of my
daughters in the order of their birth, starting with
'Item. those ofmy eldest duaghter, Doña Esutaquia, and
the order of this succession shall be the same as
that already prescribed for the male line.
'It is my will that all the property hereby entailed
and all that which may be added to it shall not be
sold or alienated, in whole or in part, or charged or 'Item.
ecumbered or mortgaged wit censos, or any other
kind of encumbrance or charge; and if the contrary
'And should the line of my descendants of all kinds
is done it shall be void and he who shall have
be absolutely and completely extinguished, then
done it or attempted to do it shall immediately lose
the mayorazgo shall be applied to the
the possession of themayorazgo, and it shall pass
maintenance of the Regiment of the Militia of
out the next in succession, who shall make
Mestizos Sangleyes, entitled of the "Prince Royal"
demand for the annulment of the alienation within
or any other body of soldiers of the same
thirty days; and if he shall fail to do so, he shall
nationality which may be bearing arms in the
also lose themayorazgo, and it shall pass to the
service of our King; but if at that time there should
following possessor; and the same rule shall apply
be in existence any Monastery for descendants of
as to all the possessors, and this clause shall be
that nationality, then from that time I deed in favor
observed although ignorance of it be alleged.
of it one-half of the aforesaid mayorazgo; and
should there not be at that time either of those two
'Item. things, let the whole mayorazgo revert to the
Royal Treasury. And with these clauses,
conditions, and charges I hereby make, constitute
'To the enjoyment and possession of and establish this mayorazgo, constituting its
the mayorazgo I hereby call in the first place my lawful possessor the owner (Señor) thereof upon
the terms set forth; and it is my desire that it have and dwellings; the members of my council, Presidents,
all legal effect that other mayorazgos have and Regents and Justices of my Royal Court of Justice, the
that it should be so considered after obtaining the Wardens and Sheriffs of my House, Court and Chanceleries,
Royal Consent and not before, because in all the Governors and Corregidores,Veinticuatros, Knights,
establishing its clauses and conditions it has been Squires, Officers and gentlemen, all the Majors, Naval
my only aim to make them known to the Royal Provosts and all of my Judges and Justiciars, as well as all
Audiencia and to H. M. so that in view of the same the other inhabitants of all my Cities, Towns and open places
they may alter or modify them according to their of these my Kingdoms and Realms, and of the Indies and
will, with the understanding that I, as a faithful Islands of the Ocean Sea, not only those that exist at
vassal and obedient subject, hereby accept the present, but also those that may come into existence in the
establishment of the mayorazgo under any terms future (I order them I say) to observe and obey and to
and conditions that may meet with the approval of enforce the observance and fulfillment of every thing that
H. M., in this pueblo of Binondo this 25th of may be contained in this, my letter of approval and
February, 1794. Antonio Tuason.' confirmaion, in the exact terms in which it is set forth, and
that upon no excuse or cause whatsoever shall they oppose
on their own part or allow others to oppose, any obstacles
In view of which you concluded by praying that the said
whatever to the fulfillment of this my will; and let this my
document, having been presented to me, I should deign to
letter be registered in the "Contadurias Generales de
approve, in each and every one of its terms, the above-
valores," Royal Exchequer and my Council of the Indies.
mentioned entail of strict agnation, which of the third and the
remainder of the fifth of his property the aforesaid Don
Antonio Tuason established in favor of yourself as first-born Dated in San Ildefonso, the 20th of August, 1795.
son, and of your own and his other descendants under the
terms set forth therein, and requested that the corresponding
I, THE KING
royal permit be duly issued. And bearing in mind the report
of my Council of the Indies, and a letter from my Royal
Audiencia of Manila, dated July 22 of last year, declaring that At the beginning and on the left margin there is a note
the said Audiencia could find no objection to the reading as follows:
establishment of the above-mentioned entail and attaching
thereto a certified copy of the document in which the
aforesaid entail was established, and in view furthermore of Approving and confirming the mayorazgo founded
the reports received by me from the Royal Exchequer and by Don Antonio Tuason, late Lieutenant-Colonel of
from my Fiscal, I have deigned to approve your request in the Royal Armies, and supernumerary Colonel of
consideration of all the circumstances detailed above as well the Regiment of the Prince Royal of the City of
Manila, in the Philippine Islands, upon the terms
as of the services you rendered me by paying me the sum of
8,800 reales asHalf Annata. and conditions therein set forth.

Done in duplicate, countersigned by the Secretary,


Therefore, of my own volition, with full knowledge of all the
facts, and by virtue of my Royal Prerogative, of which I have Don Antonio Ventura de Franco.
decided to make use in the present instance, and of which I
do make use as King and natural Lord, recognizing no Neither the authenticity nor the due execution of the
higher authority over me in regard to my temporal power, I instrument above set forth has been disputed, nor its solemn
hereby do approve the establishment of legalization and confirmation in strict accordance with the
the mayorazgo founded by your above-mentioned father, laws then in force.
Don Antonio Tuason, and I hereby declare it to be in effect
henceforth forever, and I do ratify and confirm henceforth the
validity of the same, in the terms in which it was established, The disagreement of the parties is as to whether the first-
with all the clauses, conditions, penalties and restitution born possessor of the entail is or is not a mere usufructuary
provided for in the body of the said document, and do and if the mayorazgo is or is not a trust (fideicomiso).
obviate and overcome any all obstacles, fault or defects, of
fact or of law, of form, order or substance, that it may be At first sight it might appear to be unnecessary to decide
necessary for me to validate in order to confirm and ratify the these questions, if plaintiffs' action is based, as alleged,
said mayorazgo; and I ordain that all the foregoing be put upon the right of their ancestors to a participation in the fifth
into effect, fulfilled and observed, notwithstanding any and all of the revenue is a fairly trust subject to article 4 of the
other laws,fueros, rights, usages, customs, pragmatics, and Disentailing Law of October 11, 1820, such participation in
conditions of these Kingdoms and Realms, as well as of the the revenue, by virtue of the provisions of that article,
Indies, be they general or special, and whether passed in became converted into a participation in a fifth of the
parliament or otherwise, for should any such exist contrary properties of the mayorazgo. There would be no occasion for
hereto, I hereby repeal them and declare them to be null and such condition and participation in the property if the first-
void in whatever may relate to the effect and validity of this born possessor had, not only the usufruct, but also the
Cedula, although leaving them in full force and effect in naked ownership, nor if the entail were not a trust.
regard to all other matters.
Both parties agree, nevertheless, that the entail under
And by this my letter or its duly certified copy signed by a consideration is a mayorazgo. Now what is a mayorazgo?
notary public I request my beloved son, His Serene Highnes Let us take the definition given according to Gutierrez by
the Prince Don Fernando, and I order all the Infantes, Molina in his "Hispan Primogeniis," accepted by the parties.
Prelates, Dukes, Marquises, Counts, Knights, Ricos It is as follows:
Hombres, Priors of the orders, Comendadores, and Sub
Comendadores, Wardens of my Castles, my fortified houses
Majoratus est jus succedendi in bonis ea lege severely forbidden to sell them, alienate them or encumber
relictis ut in familia integra perpetuo conserventur, them in any manner whatsover.
proximoque cuique primogenito ordine succesivo
deferantur. (Gutierrez "Codigos," tomo 2, p. 207.)
If his rights are limited in this manner it is our understanding
that the first-born who enters into possession of
(A mayorazgo is the right to succeed to the property left thismayorazgo does not acquire the dominium directum over
upon the condition that it be preserved perpetually intact in the entailed properties, but only their enjoyment, or, in other
the family and that it be transmitted in order of succession to words, the dominium utile, and this is precisely what
each next first-born.) constitutes a usufruct, which, as we know, is the right to
enjoy the property of another with the obligation of
preserving its form and substance. (Jus alienis rebus untendi
In the present foundation we find: Succession to the
fruendi salva rerum substantia.)
hereditary estate; the condition that the properties be
preserved perpetually intact in the family of the founder; the
requirement that they shall pass in the established order to But, if the first-born possessor is not vested with the
each succeeding first-born. ownership of the properties, whom is it vested?

Now let us see if the first-born possessor of the entail is or is It is vested perpetually in the descendants of the founder, in
not a mere usufructuary. all their indefinite succession. This is what is implied in
Molina's definition which we have transcribed: ". . . Ut in
familia integra perpetuo conserventur . . . ."
In the text of the instrument of foundation we see that the
founder does not give to the first-born the title of "owner" but
only that of possessor, and that he applies this designation Therefore it is that Alcubilla (Diccionario de la Administracion
to him with frequent insistence. In the seventeenth clause it Espanola, vol. 7, p. 1000), in speaking of themayorazgo,
is declared that it is the enjoyment and possession of begins by saying: "The mayorazgo was an entail of
the mayorazgo (not the absolute ownership) to which the properties subject to the ownership of a family with the
first-born is called. And when, in the eighteenth clause he prohibition of alienation." (Emphasis ours.)
calls him "owner" (señor), the founder takes care to do so
under express limitation of the concept, for he says: "And
Escriche, in his "Diccionario Razonado de Legislacion y
with these clauses, conditions and chargesI hereby make,
Jurisprudencia," (vol. IV, p. 67) gives a similar definition,
constitute and establish this mayorazgo, constituting its
which is as follows:
lawful possessor the owner (señor) thereofupon the terms
set forth . . . ." (Emphasis ours.)
Mayorazgo. The right to succeed to entailed
properties, that is, to properties subject
With respect to the extent of the right of the first-born
to perpetual ownershipby some family, with the
possessor of the mayorazgo upon the properties thereof, this
prohibition of alienation. (Emphasis ours.)
is what he said upon this subject in clauses 8 and 16, which
we again transcribe, as follows:
It is to be noted that both Alcubilla and Escriche, use the
expression ownership of the family," and not ownership of
Id. It shall be his duty (that of the possessor of
the first-born possessor."
this mayorazgo) to preserve all the entailed
properties in good condition and to try to increase
them as much as possible, and their increase shall That the possessor of mayorazgos were nothing more than
also be incorporated into the mayorazgo. . . . usufructuaries, has been so decided by the Supreme Court
(Emphasis ours.) of Spain in its judgment of June 5, 1872, of which the part
pertinent to this case is as follows:
It is my will that all the property hereby entailed
and all that which may be added to it shall not be Up to the time of the publication of the Disentailing
sold or alienated, in whole or in part, or charged or Law in 1836 [in the Philippines read March 1,
encumbered or mortgaged with censos, or any 1864] the possessors of entails and mayorazgos
other kind of encumbrance or charge; and if the HAD ONLY THE RIGHT OF USUFRUCT of the
contrary is done it shall be void and he who shall inalienable properties which constitute them, with
have done it or attempted to do it shall the obligation of performing the obligations
immediately lose the possession of the imposed by the founder, for which reason they
mayorazgo, and it shall pass to the next in could only renounce or transfer that same right
succession, who shall make demand for the and the powers granted them by the foundation.
annulment of the alienation within thirty days; and (Capitals and brackets ours).
if he shall fail to do so, he shall also lose
the mayorazgo, and it shall pass to the following
possessor; and the same rule shall apply as to all Let us pass to the second point. Is this mayorazgo a trust or
the possessors, and this clause shall be observed not?
although ignorance of it be alleged.
Counsel for defendants allege that the mayorazgo is an
Consequently, the first-born, according to the terms of this institution distinct from the trust (fideicomiso), and that the
entail here in question is a mayorazgo and not a trust.
foundation, has the "enjoyment and possession" of the
properties of the mayorazgo, but subject to the strict
obligation of preserving them intact, it being absolutely and
It is true that the mayorazgo must be distinguished from the the essential common elements which they recognize in
trust. But it is also true that the differences between one and them, and which have led them, by association of ideas, to
the other do not make the mayorazgo incompatible with the think of the one when studying the other, but rather reasons
trust. Gutierrez, in his work entitled, "Codigos o Estudios of distinction and difference because of their essential
Fundamentales sobre el Derecho Civil Espanol," second generic similarity.
volume, pages 191 and 192, second edition, says:
There were and there are still in the Spanish laws various
Mayorazgos have also been compared to trusts forms of trust derived from the customary law. Among such
(fideicomisos), but we cannot believe that the intention, in trusts, one successive and perpetual one arose, vested with
doing so, was to make no distinction between them. To say the prerogative of primogeniture, and involving the principle
that they were introduced in imitation of the fideicomisos and of masculinity. This is the mayorazgo.
of the feuds not equivalent to the affirmation that they are
either one or the other. If it is necessary to seek out the
Thus it is that Scaevola, in his work on the Civil Code,
antecedents of this institution, one must go to the source of
volume 13, pages 501 and 502 says:
all of them—the Roman Law and the Germanic Law. The
former gives us as our sole model the fideicomiso; but
knowing what this was, and the causes and effects of this But up to this point we have been speaking of
testamentary disposition, it would have been an error, temporary trusts. Now comes the turn of the
impossible to our authors, to regard the fideicomiso as the perpetual trusts, the most typical of which is the
source from which the mayorazgos were derived. Let us see institution know by the name of mayorazgo.
how Paraladorio explains the matter in his Diferencias: 'The (Emphasis ours.)
nature of the mayorazgo has such affinity with
the fideicomiso that to some extent Palacios, Rubios,
Covarubias, Menchaca, etc., are not without justification for And on page 505 of the same volume, speaking of the
their statement: Nihil aliud esse majoratum quam tendency to perpetuate family Lustre and traditions, the
same writer makes the following statement:
fideicommissum quoddam in perpetuum relictum cum
primogeniti praerogativa. Nevertheless they are to be
distinguished, first because the fideicomiso can be created From the nobles the tendency passed to the
by will or codicil only whereas the mayorazgo can be created commons and the mayorazgo became general.
by contract; the fideicomisario (beneficiary) cannot take What did themayorazgo come to be?
possession of the property by his own authority; the The Roman SUSTITUCION FIDEICOMISARIA as
successor to a mayorazgo, as soon as the condition of the to its form; as to its substance the continuation of
instrument of foundation is complied with, acquires the this substitution with the right of primigeniture and
possession thereof. The mayorazgo is an institution sui the principle of masculinity. (Emphasis ours.)
generis, and it cannot be said, simply because it possesses
similarity to the fideicomiso, and at times may be governed
by the same rules of law, that they are one and the same In the "Enciclopedia Juridica Española," vol. 22 page 105,
thing.'(Dif. 18.) the distinguish collaborator, Don Jose Buxade, in explaining
the mayorazgo, makes the following observation:

As may be seen, these differences refer to the origin of the


institution, to the form of its constitution and to its enjoyment This succession, predetermined by the founder or
on the part of the beneficiary. These are details which do not by the law, has some of the features of the
divest the mayorazgo of its nature as afideicomiso, the sustitucion fideicomisaria, some of the Germanic
essence of which, in concise terms, is nothing more than the principle of masculinity and some of feudal
confiding of a thing to one in order that he may preserve it primogeniture, as has been stated by Señor
and deliver it to another (fidei tuae committo). This in Azcarate. (Emphasis ours.)
substance is what the mayorazgo is — the confiding of the
entailed properties to the first-born in order that he may As we have observed in one of the citations which we have
preserve them for the family and deliver them to his inserted, the writer Palacios Rubis, and other mentioned by
successor. Parlodorio, did not hesitate to say, as he observes: "Nihil
aliud esse majoratum quam fideicomissum quoddam in
To both institutions is applicable this definition of the perpetuum relictum cum, primogeniti praerogativa." (That
fidiecomiso, taken from Alcubilla (Diccionario de la the mayorazgo is nothing but a certain trust left in perpetuity
Administracion Española vol. 5, p. 635); and with the preogative of primogeniture.)

A form or manner of testamentary substitution by And this, in our opinion, is correct. The fideicomiso is the
which the testator or trustor charges the heir genus and the mayorazgo the species. Not
(trustee) to deliver a certain aliquot portion of the everyfideicomiso is a mayorazgo, but every mayorazgo is
estate, or all thereof, to a third person who a fideicomiso.
receives the name of beneficiary (fideicomisario)
Analyzing the entail under consideration, we may say that it
As every mayorazgo contains the essential elements of is a mayorazgo (from major natu, the first-born) in that it is a
a fideicomiso, many writers, among who are those whom we right granted to each first-born to succeed to the entailed
cite in this decision, when they speak of the fideicomiso in properties in order to preserve them intact and perpetually in
the sustitucion fideicomisaria, cannot avoid directing in the the family, and deliver them in the order of succession to the
sustitucion fideicomisaria, their attention to the mayorazgo, following first-born. And it is afideicomiso, in that it is a
and they compare the two institutions, seeking in them, not charge of confidence impose upon the first-born usufructuary
possessor to preserve the entailed properties in order to
deliver in due time the possession and enjoyment thereof to the mayorazgo which we must keep in much in order to
the succeeding first-born. determine whether the plaintiffs are or are not entitled to the
relief sought by them in the complaint in this case.
Leaving out of consideration for a moment its characteristic
of perpetuity, which as we have seen, does not alter its The fact that in the mayorazgo there is a perpetual entail of
nature, this successive appointment, made in the foundation properties while in the ordinary fideicomiso it is not
in the case at bar, to the enjoyment of the dominium futile temporary, does not support the theory of the defendant. We
amounts to a call to the usufruct with which the second part have already observed that Scauvola refers to
of article 787 of the Civil Code deals. We refer to it in order themayorazgo does not deprive it of its nature as
that a better understanding may be had of the following a fideicomiso.
language of Manresa in one of his commentaries upon that
article, which is as follows:
The fact that in the mayorazgos the possessor enjoys the
properties, whereas under ordinary fideicomiso he does not,
But notwithstanding such authoritative opinions to is no reason for concluding that the mayorazgo is not
the contrary, it is our understanding that if the a fideicomiso. This difference as to the rights of the trustee in
usufruct, like other rights, may be the subject either case does not destroy the nature of the charge of
matter of a substitution because the testator is not preserving the properties received in order to deliver them to
bound to dispose jointly of the dominium directum the beneficiary. We have already noted that in
and the dominium utile, or in favor of a single the mayorazgo the possessor of the entail is a mere
person, it is unquestionable that when he called usufructuary and this only during the period of his tenancy.
successively several instituted heirs to the
enjoyment of the dominium utile, the one first
It is not correct to state, as is asserted in the reply
called has the character of the trustee who is to
memorandum of the appellees, pages 2 and 3, that the first-
deliver that right to the beneficiary when the time
born or successive possessor of the mayorazgo are at one
specified in the will arrives and that therefore it
and the same time trustees and beneficiaries. They are not
constitutes a true fideicomiso. (Manresa, Spanish
both at the same time or with respect to the same thing.
Civil Code, vol. 6, p. 172, edition of 1921.)
While he possesses the mayorazgo, the first-born is a
(Empahsis ours.)
trustee, but he is not a beneficiary. If he enjoys the
properties he does not do so as either trustee or beneficiary
But counsel for defendants insist that this mayorazgo is not but as a usufructuary heir. During his possession of the
a fideicomiso. entail he is the trustee and the owner called to succeed him
in the enjoyment and possession of the entail is the
beneficiary or cestui que trust until his tenant begins, and
Not let us examine the grounds upon which this conclusion
when it dies begin he ceases to be the cestui que trust and
rests.
becomes the trustee. Consequently, in themayorazgo at any
given moment the same distinction exists between the given
They refer to the fact that both in the deed of foundation and functions and rights of the interested parties as that which
in the Royal Cedula by which it was conferred as well as in there is in the fideicomiso.
the complainant in this action, in the stipulation of facts and
in plaintiffs brief, it is not called a fideicomiso but
It is asserted in said memorandum and in the same place
a mayorazgo. But mayorazgo is the specific name, and if, as
that in the mayorazgo the title to the properties is vested in
we have said, the mayorazgo belongs to the genus
the first-born who possesses them, in view of his double
offideicomisos, because it is one of them, the mere fact that
character of trustee and cestui que trust, while in
the name fideicomiso was not given it is not equivalent to a
thefideicomiso the title is not vested in the cestui que trust,
denial that it is such.
but in the trustee. This requires some explanation. The first-
born possessor of the trust holds title to the properties as
Defendants' counsel point out several differences between trustee, not as cestui que trust; and enjoys the use of such
the fideicomiso and the mayorazgo. We have already stated properties as usufructuary, not as cestui que trust; and this
that such differences do not make them mutually title under which he holds is not definitely vested in him. It is
incompatible, and do not deprive the mayorazgo of the trust a trust title, that is to say, essentially and inseparably
characteristic inherent in its nature. conditioned upon the obligation of preserving the property for
the beneficiary. The same thing is true with respect to the
title which the trustee holds to the property in his care. The
The fact that the creation of fideicomiso is not subject to the fact is cited that the Disentailing law of October 11, 1820, in
formalities required for mayorazgo; that the latter might be
enumerating the entails which it abolishes, uses the terms,
founded by contract and are irrevocable in certain cases, "mayorazgos," "fideicomiso" "patronatos," etc., which,
while fideicomiso must always be establishes by will and are according to counsel for defendants, implies that
revocable; that in mayorazgo the trustee is always a relative
the mayorazgo and the fideicomiso are entails of different
of the founder, whereas in the ordinaryfideicomiso it is not kinds. And so, truly, they are. The mayorazgo and
necessary that he should be; that in the mayorazgo the one the fideicomiso are different entails, but the mayorazgo does
who is called to the entail, as soon as his rights vests, may
not on that account cease to be a species of fideicomiso.
take possession of the properties without the necessity of a The purpose of the law was to abolish civil entails, and
delivery, which is not the case with respect to therefore, as Gutierrez says in the passage cited in
the fideicomiso—all these are differences in matters of detail
defendants' brief, "it was necessary to enumerate these acts
which do not change the legal condition of the property in which differ somewhat from one another, although in the
eight case inasmuch as their owner confides them to a principal idea all are alike because they are special forms of
person for preservation and delivery to another, which is the
entail." (Vol. 2, "Codigos," p. 227.) (Emphasis ours.)
characteristic and fundamental aspect of
It is said in the brief of the defendants that it may be This special trust is not an essential part of
admitted that the mayorazgo is a the mayorazgo — that is to say, the mayorazgo could have
sustitucion fideicomisariabut not that the mayorazgo is existed just as well without it. It constitutes one of the
a fideicomiso. provisions, one of the conditions imposed upon the first-born
possessor of a kind which is frequent in such cases and not
prohibited by the law. Gutierrez in the cited volume of his
It cannot, however, be denied that the sustitucion
work, page 203, says:
fideicomasaria is nothing more than the combination of the
substitution and the fideicomiso. This is so stated by the
distinguished author Sanchez Roman in the passage which The mayorazgo permits fair conditions; it would be
defendants cite in their brief (pages 35-40), and which is as difficult to determine, among the vast number
follows: which have been invested by the capricious will of
the founders, which are those which merit this
consideration and what are their effects.
It was later, when from the combination of these
two institutions — the substitution and
the fideicomiso arose as a form completely distinct Its legality and fairness cannot be doubted,
from the other classes of substitutions known to inasmuch as this mayorazgo, including the
the law — the vulgar, thepupilar, and provision under consideration with respect to the
the ejemplar — as a means of consolidating the fifth of the revenue, was solemnly approved and
fortunes of families by preventing their dissolution confirmed by the King of Spain, who, in
and ruin. From the fideicomiso was taken the his Cedula issued for that purpose, inserted
designation of various persons through whose together with the foundation instrument at the
hands the estate was to pass applying the doctrine beginning of this decision, says in part:
of the substitution in the one called in the first
place was entitled to the use and enjoyment of the
* * * I do approve the establishment of the
hereditary properties with the obligation of
mayorazgo founded by your above-mentioned
preserving them in order to transmit them at this
father, Don Antonio Tuason, and I hereby declare
death to the one called in the second place as the
it to be in effect from this moment henceforth
substitute of the first. The second tenant occupied
forever, and I do ratify and confirm henceforth the
the same position as the first tenant with respect
validity of the same in the terms in which it was
to the person designated in the third place, and so
established with all the clauses, conditions,
on successively. The in alienability of the
penalties and restitutions provided for in the body
hereditary properties and a pre-established order
of the said document . . . . (Emphasis ours.)
of succession, which were the logical
consequence and development of those
principles, constituted the elements of the entail This special charge upon the fifth of the revenue constitutes
and it was sufficient to add to them, in the most the family trust to which Scaevola refers in his cited work on
advanced period of their history, the Germanic the Civil Code, volume 13, pages 697, 698, wherein he says:
principle of masculinity and the feudal principle of
primogeniture, in order to establish
Family trusts. — The Act of 1820 distinguishes
themayorazgos — true outgrowths of
the sustitucion fideicomisaria. (Vol. 6 [1st vol.], pp. between mayorazgos and fideicomisos. In the
689, 690.) (Italics ours.) former there is a successive succession of certain
persons, a transmission from one to another; in
the fideicomiso on the contrary there is only
The quoted paragraph contains a statement made by other a corpus of properties, the revenues from which
writers, which is that the mayorazgo is an outgrowth of are distributed annually, or at longer or shorter
the sustitucion fideicomisaria. If the latter, according to the periods among groups of persons. When this
cited passage, is in turn a combination of thesustitucion and group is composed of relatives of the founder, the
of the fideicomiso, it follows that there is a fideicomiso in trust is called a family trust. (Emphasis ours.)
the sustitucion fideicomisaria, just as there is in the
outgrowth of the latter, which is the mayorazgo, unless the
fideicomiso disappeared when it was combined with It is true that the special charge which constitutes the family
trust established in the entail now under consideration, is
the sustitucion and converted into the sustitucion
fideicomisaria, and also disappeared when different from the mayorazgo upon which it is based, and as
themayorazgo was developed from the latter institution. But Scaevola well says, the Act of 1820 distinguishes one from
the other by different precepts, applicable to each, as we
such is not the case, and we have already seen that
themayorazgo is in itself a fideicomiso, that it is one of its shall see hereafter. And they are different from one another
species. even though in the essence both are trusts. Applying to our
case what is said by Scaevola in the citation we have just
transcribed, it follows that in the mayorazgo, properly so
We are unable to find any sufficient reason for the called, the usufructuaries, who are the first-born possessors,
abandonment of the conclusion that the mayorazgo in succeed on another in the usufruct of the properties, and
question is in its essence a fideicomiso. transmit them from one to the other; that is to say, as
Scaevola says, "there is a successive succession of certain
persons, a transmission from one to another;" and in the
Now, within this foundation a special trust was established,
family trust there is the corpus of the property of the ential, a
consisting of the charge laid upon the first-born possessor to
fifth of the revenue of which is distributed annually among
set apart the fifth part of the net revenue of the properties
the relatives of the founder, which is what Scaevola says in
each year, and to distribute it among the eight younger
the cited passage. But in the passage he says: "In the trust
children of the founder and other specified relatives.
(fideicomiso) on the contrary there is only a corpus of
properties," etc. He says "there is only" in contradistinction to of his possession; for as soon as his possession
what there is in the mayorazgo, namely a succession of commences, he becomes the trustee and the following first-
usufructuaries and the transmission of the usufruct from one born becomes the beneficiary.
to the other; while in the family trust there is no such
succession of usufructuaries or such transmission of the
In the family trust instituted within this mayorazgo, and upon
usufruct, but only a corpus of properties, a fifth of the
the fifth of the revenue, the trustor is the founder himself; the
revenue of which is distributed each year among the
trustee is also successively each first-born possessor of the
relatives of the founder.
entail from the time he possesses it and while he possesses
it; and the beneficiaries, or cestuis que trustent, are the eight
It is true that in this family trust there is a succession of younger children of the founder and other relatives
beneficiaries who are the first-born sons; but this succession designated in the deed of foundation.
is inevitable in every perpetual family trust, because man's
life is limited. And certainly the existence of such an
We deem it to be advisable to state, for the purpose of
indefinite succession is to be anticipated in a perpetual
avoiding confusion, that we have adopted here the
family trust, such as the one under consideration, as
nomenclature of the Civil Code in force (arts. 783, 784) in
otherwise it would not have been one of the entails
which the "fideicomisario" is the beneficiary (cestui que
abolished by the Act of October 11, 1820.
trust), as distinguished from the meaning with which this
word "fideicomisario" has been used in the Spanish
But counsel for defendants observes that translation of sections 582-593, and 778 of the Code of Civil
the mayorazgo having been established upon all the entailed Procedure, in which the idea is conveyed that the
properties, there cannot be a distinct and separate trust with "fideicomisario" is the person charged with the trust — that
respect to a part of the revenue. He adds that there would is, the "trustee" whom we designate as the "fiduciario."
have been such a separate trust if the founder had
designated certain properties which would constitute a fourth
DISENTAILING LAW; CONDUCT OF THE
part (he probably meant to say four-fifths) and
PARTIES; ITS EFFECTS
the mayorazgo had been established upon this and that the
family trust had been established upon the remaining fifth.
We have stated that on October 11, 1820, the Civil
Disentailing Law was published in Spain, and that this Act
We find no force in this suggestion. If the founder had
was extended to the Philippines of the 1st of March, 1864,
designated certain properties constituting a fifth of the
by Royal Decree dated October 31, 1863.
entailed estate, in order that the revenue of that fifth might
be distributed among his eight younger children and other
relatives, he could not have been sure whether the revenues Articles 1, 2, 3, 4, 7 and 10 of the Statute of October 11,
of the fifth of the entailed properties would constitute a fifth of 1820, which contain the precepts pertinent to the matters
the revenue of all such properties. His clearly expressed here in controversy, read as follows:
intention, as shown by the deed of foundation, is that there
shall be distributed not the revenue from one-fifth of the
properties, but a fifth of the revenue of all the properties ARTICLE 1. All mayorazgos, fideicomisos,
mentioned. patronatos, and every other species of entail of
property, real personal, mixed or semoviente,
censos, juros or of any other nature, are hereby
It is our opinion that such a charge with respect to the abolished, and the properties entailed are
distribution of the fifth of the revenue constitutes a family henceforth restored to the class of absolutely free
trust such as that described by the learned writer Scaevola properties.
in the citation above set forth.
ART. 2. The present possessors of the entails
Therefore, with respect to the question raised by the parties abolished by the preceding article may at once
concerning the nature of the foundation which is the subject- freely dispose of one-half of the properties of
matter of this action, our conclusions are as follows: which they are composed; and after their death
the other half shall pass to the persons who would
have been entitled to succeed immediately to
The first-born possessor of this mayorazgo is a mere
the mayorazgo if it had subsisted, so that he may
usufructuary of the entailed properties.
also freely dispose of it as the owner. This one-
half reserved to the immediate successor shall
This mayorazgo is, in its essence, a trust. never be liable for debts contracted or which may
be contracted by the present possessor.
Annexed to this trust there is a special institution which
constitutes a family trust. ART. 3. For the purpose of carrying into effect the
provisions of the preceding article, whenever the
present possessor may desire to alienate all or
With respect to the parties interested in these institutions so
part of his one-half of the properties heretofore
constituted by the present foundation, we hold that in
entailed, a formal appraisal and division of all of
the mayorazgo as such, from the point of view of its nature
them shall be made with strict equality and with
as a trust, the trustor is the founder; the trustee is
the intervention of the immediate successor; and if
successively each first-born possessor of the entail, from the
the latter should be unknown, or should be subject
time he possesses and while he possesses it; the
to the patria potestas of the present possessor,
beneficiary or cestui que trust, in the first-born successor
the Syndic Procurator of the town where the
called to possess the entail, and prior to the commencement
possessor resides shall intervene in his name,
without requiring for this any fees or emoluments recipients of such allowances for support are
whatever. If these requisites are not complied with, immediate successors, in which case they shall
the contract of alienation made shall be void. cease to enjoy them as soon as the present
possessors die. Thereafter the obligations now
existing to pay such annuities (pensiones) and
ART. 4. As to family trust, the revenues of which
allowances for support (alimentos) shall cease, but
are distributed among the relatives of the founder,
it is declared that if the present possessors do not
although they be of different lines, the appraisal
invest in such allowances for support (alimentos)
and distribution of the properties of the trust shall
and annuities (pensiones), a net sixth part of the
be made at once among the present recipients of
revenues of the mayorazgo, they shall be obliged
the revenues in proportion to that which they are
to contribute up to this extent for the purpose of
receiving, and with the intervention of all of them;
endowing their sisters and aiding their brothers in
and each, as to the part of the properties which is
proportion to their number and needs; and a like
allotted to him, may freely dispose of one-half,
obligation shall rest upon the immediate
reserving the other half to the immediate
successors in respect to the one-half of the
successor in order that he may do likewise, in
properties reserved to them.
strict accordance with the provisions of article 3.

xxx xxx xxx


ART. 5. With respect to elective mayorazgos,
trusts or patronatos, when the election is
absolutely free, the present possessors may ART. 14. No one hereafter, even though it be by
dispose as owners of all the properties; but if the way of betterment or upon any other title or
election must necessarily fall upon a member of pretext, shall found any mayorazgo, fideicomiso,
some particular family, or community, the patronato, capellania, obra pia or any entail
possessors shall dispose of only one-half and whatsoever upon any kind of properties or rights,
shall reserve the other one-half to the end that the nor prohibit, directly or indirectly, their alienation.
successor who may be elected may do the same; Neither shall any one entail bank stock or other
the appraisal and division prescribed by article 3 foreign funds. (Vol. 6, "Legislacion Ultramarina,"
shall be made with the intervention of the Syndic by Rodriguez San Pedro, page 72.)
Procurator.
Under the provisions of article 2 above set forth the
xxx xxx xxx possessors of mayorazgos from the time the Act took effect
were authorized to dispose freely of one-half of the entailed
properties, the other one-half being reserved in absolute
ART. 7. The temporary, as well as the perpetual,
ownership to the successor to the entail.
charges to which all the properties of the entail are
subject in general, without special mortgage, shall
be allotted with proportionate equality to the And in accordance with the provisions of article 4 of the
properties distributed and partitioned, as herein same statute, the properties of the family trust were required
provided, unless the interested parties by common to be distributed among the recipients of revenues in
agreement, shall prefer some other method. proportion to their respective participations.

xxx xxx xxx Applying these articles to the foundation which is the object
of the present case, and considering as we do, that the
charge relating to the distribution of one-fifth of the revenue
ART. 10. Be it likewise understood that he
constitutes a family trust, it follows that for the purpose of
foregoing provisions shall be without prejudice to
carrying out the provisions contained in the entail under
the allowances for support (alimentos) or annuities
consideration, without a breach of any of its conditions, it
(pensiones) which the present possessors are
must be kept in mind that the participation in the fifth of the
required to pay to their mothers, widows, brothers,
revenues, by virtue of article 4 above-mentioned, and
the immediate successor, or other persons, in
proportionately among the recipients, became converted into
accordance with the foundations or private
a participation in the ownership of one-fifth of the properties;
agreements, or judicial decision. The properties
and inasmuch as this fifth must be taken from the properties
heretofore entailed, although they may pass as
of the mayorazgo, it is evident that the provisions contained
free to other owners, shall remain subject to the
in article 2 of the law with respect to the power of the first-
payment of such allowances for support
born possessor to freely dispose of one-half and to reserve
(alimentos) or annuities (pensiones) during the
the other one-half to his successor, must become operative
lifetime of those who are now receiving them, or
in our case, not upon all the properties of the entail, because
while they retain the right to receive them, unless
one-fifth is assigned by article 4 above-mentioned to the
the recipients of such allowances for support are
recipients of the fifth of the revenue, and their successors,
immediate successors, in which case they shall
but upon the remainder, namely the four-fifths part of said
cease to enjoy them as soon as the present
properties.
possessors die. Thereafter the obligations now
existing to pay such annuities (pensiones) and
allowances for support (alimentos) shall cease, but Counsel for defendants, insisting in their opinion that this
it is declared that if the present possessors do not charge concerning the distribution of the fifth of the revenues
invest in such allowances for support (alimentos) among the relatives of the founder is not a family trust,
and annuities (pensiones) during the lifetime of denies the applicability of article 4 of the Disentailing Law,
those who are now receiving them, or while they and affirms that such distribution of the fifth of the revenues
retain the right to receive them, unless the relates to the charges, allowances for support (alimentos)
and annuities (pensiones) to which articles 7 and 10 of that At all events article 10 refers to allowances for support or
statute apply. pensions in general; and even assuming for the moment that
the fifth of the revenues to be distributed among the younger
children of the founder and his other relatives should also be
Having arrived at the conclusion that this distribution of the
considered as an allowance for support or a pension, this
fifth of the revenue is a family trust, it appears to us that the
article would not be applicable because there is a special
application of article 4 of the Disentailing Law is inevitable as
provision in article 4 which relates specifically to family trust,
this article expressly and unequivocally refers to "family
the revenues of which are distributed among the relatives of
trusts, the revenues of which are distributed among the
the founder. The legal maxim is: specialia generalibus
relatives of the founder."
derogant.

With respect to the charges to which article 7 refers, counsel


The same thing may be said with respect to article 7 which
for defendants insist that these are included in the pensions
refers to "the temporary, as well as the perpetual, charges to
mentioned in article 10 and, for the purpose of supporting
which all the properties of the entail are subject in general."
this assertion, cite Gutierrez' Commentary upon article 7. To
Considering this distribution of the fifth of the revenue as
this counsel for plaintiff reply with an observation which, in
a charge in the broadest meaning of this word, we should
our judgment, successfully refutes defendants' proposition.
not apply article 7, which deals with charges in general,
This is what the plaintiffs say in their additional brief, pages 5
because there is another provision in article 4 which relates
and 6:
specifically to the distribution of revenues among the
relatives of the founder.
In his commentary on article 7 Gutierrez says, as
stated in the brief of our opponents, that "this
Now, in accordance with the allegations contained in
provision was lacking in the draft, for article 5, with
paragraph 5 of the first special defense (bill of exceptions, p.
which it is most naturally connected, speaks of
45), it was Don Jose Severo Tuason who possessed
allowances for support and pensiones
the mayorazgo on the 1st day of March, 1864, on which date
alimenticias, which, in the existing law, are
the Disentailing Law, to which reference has been made,
covered by a special article." From this citation we
became operative in the Philippine Islands.
draw the conclusion that article 7 did not exist in
the original draft of the law; but on the other hand,
the provisions of article 10 did exist in the original By virtue of the provisions of article 2 of that law, Don Jose
draft, and it became necessary to increase it, in Severo Tuason, the then possessor of the entail, might on
the bill article 10 and this does not include what is that date have freely disposed of one-half of the four-fifths of
included in article 7. the properties of the mayorazgo.

This fifth of the revenue, the distribution of which is required An in accordance with the provisions of article 4, he should
with respect to the family trust, cannot be the same as the have made an appraisal and distribution of the fifth of the
allowances for support or pensiones alimenticias, to which properties among the recipients of the revenues in
article 10 relates, for, as observed by counsel for plaintiffs, proportion to their respective participations, and each might
the younger children, among whom in the first place this fifth have freely disposed of one-half of his participation,
of the revenue was to be distributed, had already received reserving the other one-half for his immediate successor.
their respective legitimes before the mayorazgo was
founded. At the beginning of the deed of foundation and in
Nothing of this kind was done, however. Don Jose Severo
its first clause we find that the founder says, among other
Tuason continued to regard the mayorazgo as subsisting
things:
and the properties as entailed. Thus it was that in his will,
executed February 1, 1874, he says, among other things:
* * * and desiring, on the other hand, to secure in
part the permanence of my estate, without
Item. I declare that when I married my said wife
diminishing the legitimates of my other children . . .
my said wife my estate consisted of the sum of
.
$144,974.28, deducting the value of the entail I
possess. (Clause 3, folio 2, Exhibit 1.)
xxx xxx xxx
Item. I declare that among my properties is
Having taken stock and inventory of all the included the entail which I have been enjoying and
property of which I am now possessed, in cash, which I inherited from my father, whom I trust is in
real estate, jewelry and other things, I found glory on high, and which will pass in the same
myself to be the possessor of an estate of the order of its institution to my first born son, Don
value of one hundred and thirty-five thousand Jose Victoriano, subject to the provisions of law
pesos, which after having deducted the third and now in force in the matter. (Clause 6, ditto, folio 3.)
the fifth, left me a remainder ofseventy-two (Emphasis ours.)
thousand pesos which I divided among my eight
children, there corresponding to each of them the
This testator, as we have stated in the beginning, died on
sum of nine thousand pesos which sum was
February 3, 1874.
actually delivered to each and very one of them,
as is shown by documents which I have in my
possession; and the third and the remainder of the His heirs and successors continued to respect
fifth I hereby devote to the aforesaid entail. . . . the mayorazgo, as may be seen in the deed of partition in
(Parenthesis and Emphasis ours.) the proceedings connected with the inventory, liquidation
accounts and distribution of the estate (Exhibit 3), judicially preserve the properties of the mayorazgo respecting and
approved January 12, 1876, wherein it is said: distributing the fifth of the revenue among the descendants
of the younger children of the founder.
The $48,949.11 which is the value of the entailed
properties which are to pass intact to the But the entail could not and cannot continue perpetually. Its
immediate successor of the mayorazgo. (Folio 2, abolition was decreed by the statute as of the 1st day of
Exhibit 5.) March, 1864. Its perpetual survival would be contrary, not
only to the Disentailing Law of October 11, 1820, but also
the Civil Code in force which, under articles 781 and 785,
The first-born successor, Don Jose Victoriano Tuason, as
paragraph 2, positively prohibits perpetual entails.
stated above, died January 23, 1878, at the age of 13 years.
(Paragraph 6, first special defense.)
If up to the present time the entail in question subsists, this
has been because the interested parties have been
More than eighteen years afterward, on the 7th of August,
maintaining it without proceeding to the appraisal and
1896, the record of the partition above-mentioned was
distribution of the entailed properties, as required by articles
registered.
2 and 4 of the Disentailing Law; and in accordance with the
doctrine announced by the Supreme Court of Spain on
It is also a proven fact, as stated at the beginning, that in the October 29, 1857, above cited, the properties of
books of the defendants corresponding to the time which has this mayorazgo, preserved de facto by the interested parties
transpired since the year 1904, and up to the year 1922, as entailed, legally retain this character for the purposes of
entries appear relating to expenses and receipts of their partition, which must be effected in accordance with the
the mayorazgo, participations in the fifth of the products, statute of October 11, 1920.
purchases of rights to said fifth of the products, and fees for
preparing deeds of assignment of the said fifth of the
From what has been said it follows that since March 1, 1864,
products. That is to say, the parties interested in this
the date upon which the said Disentailing Law came into
foundation kept it in force in its entirely from March 1, 1864,
force in the Philippine Islands, the successive possessors of
on which date the Disentailing Law of October 11, 1820,
the properties of this mayorazgo constituted themselves
came into effect in these Islands at least up to the end of the
trustees, charged with the administration and preservation of
year 1922, one year, seven months and some days before
the said properties and the distribution of the fifth of the
the commencement of the present action.
revenue among the descendants of the younger children of
the founder. Consequently, after the entail was abolished,
We consider it opportune to cite at this point an opinion of one-half of the four-fifths of the properties of
the Supreme Court of Spain concerning the status of the mayorazgo continued subject to the trust in favor of its
properties which formerly belonged to a mayorazgo but beneficiaries, the heirs of Jose Victoriano Tuason, who was
which are allowed to remain undivided, in which it is said: the one called to succeed immediately to the mayorazgo on
the date of its disentailment (article 2, Statute), and the fifth
of the said properties in favor of the beneficiaries, the
2. That the properties which belonged to recipients of the fifth of the revenue in accordance with the
a mayorazgo preserve their character as entailed foundation.
for the purposes of the partition, up to the time of
delivery to the heir of the possessor and to the
immediate successor of the half which is due them Summing up the effects produced with respect to
respectively. (Judgment of the Supreme Court of this mayorazgo by the Disentailing Law on the one hand,
Spain, Oct. 29, 1857.) and the conduct of the interested parties on the other, we
may say first, that the trust of the naked ownership instituted
in favor of the descendants of the founder indefinitely was
Although this doctrine does not refer expressly to family
abolished, in consequence of the disentailment; and second,
trusts, we regard it as applicable to the family trust annexed that the trust of the usufruct of the properties became
to the mayorazgo under consideration, as the same reason converted into a trust of the properties themselves, the
exists therefor. Ubi eadem ratio ibi eadem juris dispositio.
beneficiaries being the same, but as owners; that is to say,
the first-born successor as to one-half of four-fifths of the
Counsel for defendants allege that the properties of this said properties, and the descendants of the younger children
foundation passed into the hands of the heir, Jose Victoriano of the founder with respect to the remaining fifth.
Tuason, completely free, one-half by testamentary
inheritance and the other half by virtue of article 2 of the In this case we are only concerned with the fifth of the
Disentailing Law. This, however, was not the will of the
properties which plaintiffs claim as descendants of four of
testator, Don Jose Severo Tuason, nor the will of his the eight younger children of the founder.
successors, all of whom respected the mayorazgo and held
it as subsisting de facto. In no event could the properties
pass into the hands of the heir Jose Victoriano Tuason Hereinafter we shall determine the persons entitled to
completely free. It was necessary to preserve them intact participate in the fifth of the properties of this foundation and
until they were appraised and the fifth part thereof had been to what extent.
segregated for distribution among the recipients of the
revenues and their immediate successors, in accordance
LEGAL OBSTACLES ALLEGED
with the provisions of article 4 of the statute.

In addition to the arguments mentioned heretofore, counsel


It is a fact that the trust subsisted and still subsists. The
for defendants interpose as obstacles to the action of
successive possessors of the entail have preserved and
plaintiffs the registration of the title to the properties of
the mayorazgo in favor of the defendants, mentioned in defense of prescription cannot be entertained. By virtue of
paragraph 11 of the first special defense, under Act No. 496, the said trust the possession of the said defendants could
and the prescription of this action. The defendants, Doña not be regarded as a basis for an acquisitive prescription in
Paz Tuason de Gonzalez, Doña Consuelo Tuason de their favor against the plaintiffs because such possession
Quimson, Don Juan Tuason and Doña Albina Tuason has not been nor is it under claim of ownership, but a title
interpose as a defense to this action the contention that the held in the name and on behalf of the beneficiaries, some of
plaintiffs filed no claim whatever in the proceedings had whom are the plaintiffs in general. For this reason the
upon the testamentary estate of Don Juan Jose Tuason de defense of prescription cannot be enforced between the
la Paz, the father of the said defendants, which testamentary trustee and the beneficiaries while the trust relations
proceedings were finally disposed of and filed June 25, continue, as was impliedly held in the case of
1920. the Government of the Philippine Islands vs. Abadilla (46
Phil., 642).
If, as we have found and decided, the successive
possessors of the properties of this mayorazgo were and It is alleged by counsel for the defendants that in accordance
have been mere trustees of the said properties, holding them with the stipulation of facts none of the plaintiffs, nor their
in trust for the benefit of the beneficiaries, part of whom are predecessors, with the exception of those mentioned in
the recipients of the fifth of the revenues, and their paragraph 2 of the counterclaim, received any pensions
descendants, the registration of the title to said properties whatever as a charge against the revenues of the property of
under Act No. 496 in favor of the said defendants must be the entail for the ten years prior to the commencement of this
deemed to have been effected for the benefit of the action, and that for this reason the action has prescribed. We
beneficiaries of said properties, part of whom are the present have already stated that with respect to trust, such as the
plaintiffs. The doctrine established by this court in the case one here in question, the defense of prescription cannot be
of Severino vs. Severino (44 Phil., 343), is applicable to this maintained. From the 1st of March, 1864, the right of the
feature of the case. recipients of the fifth of the revenue, and their descendants,
was not and is not limited to the receipt of the fifth of the
revenue, but, as we have said, includes a participation in the
Although the plaintiffs endeavored to demonstrate that the
ownership of one-fifth of the properties of the mayorazgo,
said defendants registered the title by fraud, it is our opinion
and this right, by reason of the subsisting trust, has not
that the alleged fraud has not been proven in this action.
prescribed and is imprescriptible.
Nevertheless, the existence of fraud is unnecessary to
warrant the declaration that registration of the title under Act
No. 496 is not a legal obstacle to this action brought by It is finally contended by the defendant heirs of the late Don
plaintiffs, and the adjudication in favor of those among them Jose Tuason y de la Paz that the plaintiffs did not file any
who are entitled thereto of the portion pertaining to them of claim whatever in the proceedings had upon the
the properties so registered. It was said in the case of Gilbert testamentary estate of the said deceased, which said
vs. Hewetson (79 Minn., 326), cited with approval in the case proceedings have been now finally ended. As the properties
of Severino vs. Severino, supra: here in question constitute a trust estate such proceedings
cannot affect them, at least as to a fifth part, because such
properties were not and could not be the property of the said
'A receiver, trustee attorney, agent, or any other
testator, who therefore could not legally transmit them to his
person occupying fiduciary relations respecting
heirs. If the latter have already entered upon the enjoyment
property or persons, is utterly disabled from
of their various respective portions and have acquired a
acquiring for his own benefit the property
possession adverse to the rights of the plaintiffs, this
committed to his custody for management. This
adverse possession cannot have legally commenced before
rule is entirely independent of the fact whether any
the 19th of July, 1919, when the court approved the partition
fraud has intervened. No fraud in fact need be
of the properties of the said testamentary estate (paragraph
shown, and no excuse will be heard from the
4, fourth special defense). And even with respect to
trustee.' (Emphasis ours.)
prescription, the time which has transpired between the 19th
of July, 1919, and the 22d of August, 1923, when this action
With respect to the plea of prescription, counsel for was commenced, is merely a little over four years, an
defendants contend that inasmuch as plaintiffs, prior to the insufficient time for the acquisitive prescription of real
filing of the present complaint, had made no effort to enforce property.
their rights since the 1st day of March, 1864, their action is
barred. But from the records it appears that up to the year
Consequently, the contention of the defendants in their
1922 the defendants have been recognizing in the entries in
special defenses are not sufficient to destroy plaintiffs' action
their books, and in deeds, such as Exhibits 6 and 7, signed
or to prevent the exercise thereof.
by Don Augusto Tuason de la Paz, as grantee, the rights of
the descendants of the younger children of the founder to
the fifth of the revenue, and therefore the trust which this PERSONS ENTITLED TO THE REMEDY
charge implies; furthermore, said defendants made
payments on account of the fifth of the revenue. These acts
The recipients of the fifth of the revenues are indicated in the
of recognition and payments, made during the said period of
sixth clause of the instrument of foundation, the text of which
time, prevent the operation of prescription. (Section 50,
we again transcribe.
Code of Civil Procedure.)

It shall be his duty to set apart one-fifth of the net


Furthermore, this being a case which deals with a trust
revenue derived from the entail each year, and
which subsisted from the time of its foundation and by virtue
that one-fifth part shall be divided into eight parts,
thereof up to March 1, 1864, and thereafter down to the
giving one to each of my eight children, and in
present time by the express will of the present parties, the
their absence, to my grandchildren, but upon the
understanding that if one or more of my children As may be inferred from the provisions of this foundation,
should die without succession, the part belonging considered as a whole, the intention of the founder was to
to them shall be distributed among my give to his descendants the usufruct of the properties of
grandchildren and other descendants of mine the mayorazgo, four-fifths to the first-born possessor and his
according to their needs and as prudence may successors, and one-fifth to the eight younger children and
dictate to him, so that, when the time arrives that their successors.
none of my children or grandchildren are alive, it
shall then be always understood that said fifth part
We can see no sufficient reason for restricting here the
shall be applied to all those of my descendants
meaning of the word "nietos" (grandchildren) to sons of sons
who are poor, the apportionment to be made by
alone. From the instrument of foundation as a whole it does
him prudently according to their needs and
not appear that such was the intention of the founder. We
therefore the possessor of the entail is hereby
can see no reason why he should have limited the
charged to discharge this duty with conscientious
enjoyment of the fifth of the revenue to his eightchildren and
scruple.
to the children of the latter without extending it to their
subsequent descendants, when, in dealing with the four-
One of the issues between the parties is whether plaintiffs fifths of the revenue he extended the enjoyment thereof not
are or are not included in the word "grandchildren" (nietos) only to his first-born son, or to his grandson, the son and
employed in the clause which has just been transcribed. successor of the former, but also to subsequent first-born
children.
The precedent of the word "grandchildren" (nietos) is the
Latin word nepos, which is defined in the Latin-Spanish We do not find in the instrument of foundation, or elsewhere,
Etymological Dictionary, by Raimundo de Miguel, as follows: any reason whatever for believing that in addition to the
striking inequality with respect to the apportionment of the
usufruct (four-fifths for one child and one-fifth for eight
Nepos, otis . . . Cic. Nieto; . . . Nepos ex filia, Cic.
children) it was the purpose of the founder to still further limit
nieto (son of the daughter), . . . Nepotes (plural)
the grant to his eight children to their children as to the
Virgil, posterity, descendants.
receipt of the fifth of the revenue, when in the instrument
itself (seventeenth clause) the founder provided that in case
As we have observed in this explanation, in order to give the the male line of the descendants of his first-born son, Don
word "nepos" the meaning of "the son of the daughter," Vicente Dolores Tuason, should become extinct,
Cicero added to it the explanatory phrase "ex filia." the mayorazgo should then revert to the eldest son of his
deceased son, Don Santos Tuason (who is one of the
younger children), and that following the same order the
The technical meaning of the word in the Roman Law
descendants of his other male children (the other younger
coincides with this literal acceptation, as may be observed in children) should take by priority of birth, and that in the event
Title 19, Book 2 of the Institutions of Justiniani (D. Justiniani of the absence of male heirs of the male line, the heirs of the
Institutionum, by Gomez de la Serna, vol. 1, p. 595, 6th
female line should succeed, and failing these, the
edition), where it is said: "Sui anten et necessarii haeredes possession of the mayorazgo by order of birth should
sunt, veluti filius filiave, NEPOS NEPTISVE EX FILIO," etc. devolve upon the descendants of his children (his younger
children).
Thus we see that in order to express the idea that the word
"nieto" or "nieta ("nepos neptisve") refers to a "son or a If the descendants of the younger children, subsequent to
daughter of a son," it was necessary to add the explanatory
the grandchildren of the founder, are granted under certain
phrase "ex filio" (of the son). Consequently, without this circumstances the right to possess the mayorazgo itself, with
explanatory phrase the meaning of the word "nepos" all its properties, we do not see how it can be said that these
(grandchild) would be, in the broad acceptation, that which
descendants, subsequent to grandchildren, the sons of sons,
was given it by Virgil, namely; posterity, descendants. were prohibited from receiving a fifth of the revenues of said
properties.
This broad legal acceptation was carried into the Spanish
language when the words "nepos" and "nepotis" were It is our understanding that the intention of the founder was
hispanicized by being transformed into the word "nieto." not to restrict the grant of the usufruct of the fifth of the
Therefore, Alcubilla, in defining this word in his work,
revenue by limiting it to a certain number of generations of
"Diccionario de la Legislacion Española," (vol. 8, p. 373) the younger children, but that he intended to extend it to all
says: of the descendants of the latter. If this is so we should apply
to the case the rule of law of the Partidas (Rule 28, Title 34,
Nieto (grandson). The son of the son. Used with 7th Partida), which says: "Privilegia recipiunt largum
respect to the grandfather. The term is also used interpretationem voluntati consonan concedentis."
by extension to include the word descendant in a (Privileges are to be interpreted with liberality in accordance
given line to the third, fourth and successive with the will of him who grants them.)
generations.
Furthermore, that the present plaintiffs are entitled to receive
It is true that in the clause of the instrument which we have the fifth of the revenues has been repeatedly recognized by
been considering, the word "descendants" is also employed. the defendants when they purchased, in 1905, from Don
But this word, taking into consideration the provisions of the Jose Rocha y Ruiz, and in 1916 from Doña Remedios
deed of foundation must be understood as referring to the Aragon y Rocha their respective participations in the fifth of
descendants of the first born son who was the possessor of the revenue, according to paragraph 16 of the stipulation of
the mayorazgo. facts, and when in the years 1917 to 1921 the said
defendants delivered to Don Antonio Maria Barretto y the descendants in direct line of both of them because they
Rocha, and to Don Santiago, Don Julio and Don Andres are descendants of the younger children of the founder.
Rocha y Ruiz Delgado, and their sister, Doña Rosario; and
in the years 1917 to 1922 to Doña Isabel, Doña Enriqueta,
The plaintiffs consequently are entitled to participate in the
Doña Carmen, Don Antonio, Don Alfredo and Don Clodoaldo
fifth of the properties of this mayorazgo, whether they be
Rocha y Pereyna, Don Francisco Beech y Rojo, Don Ciriaco,
considered or not as included in the word "grandchildren"
Don Cayetano, Don Pablo Leon and Don Tomas Tuason,
employed in the instrument of foundation. In the first case,
and to the minors Doña Consuelo, Don Juan, Doña Rosario
because they are descendants in direct line of four of the
and Doña Carmen Tuason, and to Doña Victoria Rufina,
younger children, and in the second place because they are
Doña Ana Consolacion Tuason and Doña Asuncion Romana
the descendants of the recipients of the fifth of the revenue
Tuason widow of Caballero, their respective participations in
on March 1, 1864, and the immediate successors of the
the fifth of the revenue, as appears from the cross-complaint
latter.
of the defendants, admitted in paragraph 8 of the stipulation
of facts.
Passing to the amount of the participation which is due them
respectively, for the purpose of determining this point we
And it appears that the said Don Jose Rocha y Ruiz was the
must have regard to the intention of the founder, as it is
son of Don Lorenzo Rocha, a grandson, in turn, of Doña
expressed in the instrument creating the mayorazgo. It was
Gregoria N. Tuason (Exhibit 6 and paragraphs 2 and 16 of
his will that the fifth of the revenue should be divided into
the stipulation of facts); that Doña Remedios Aragon y
eight parts, and that to each of this children, other than his
Rocha is a relative of the founder (Exhibit 7, admitted in
first-born, one part should be given. Upon the death of each
paragraph 16 of the stipulation of facts); and that the said
of these children, by virtue of the provisions of the instrument
recipients of the fifth of the revenue from the year 1917 to
of foundation, and by operation of law, their right to an eight
1921 and from the year 1917 to 1922, are all descendants of
part of the revenue which they received during their lifetime
grandchildren of the younger children of the founder.
was transmitted to their heirs. That is, each of these eight
(Paragraph 2 to 20, admitted in paragraph 1 of the
portions of the fifth of the revenue was transmitted from
stipulation of facts.)
succession to succession, within the stirps of each of the
eight younger children who died leaving succession. The
But even supposing for a moment that the word "nietos" heirs of a younger son or daughter could not legally
(grandchildren) used in the instrument of foundation now participate in the eight part corresponding to another stirps,
before us, did not include these plaintiffs, we must keep in as long as heirs in the direct line of this stirps, survived; that
mind that the Disentailing Law of October 11, 1820, when it is to say, each of the eight portions of the fifth, except those
became operative in the Philippines, on March 1, 1864, corresponding to younger children born without succession.
created and adjudicated in favor of the then recipients of the The heirs of a younger child could not legally participate in
fifth of the revenue of this mayorazgo the right of ownership the eight corresponding to another strips, while heirs of this
of one-half of the fifth of these properties under article 4 of stirps in the direct line survive. That is to say, each one of
the said Disentailing Law, and vested the ownership of the the said eighth parts of the fifth, except those corresponding
other one-half in their immediate successors. to the younger children dying without succession, was
preserved and transmitted from generation to generation
within each respective stirps.
Consequently, even supposing that the receipt of such fifth
of the revenue were limited to grandsons, the sons of sons
of the younger children of the founder, and supposing also This plan of division of participation, based upon the will of
that the recipients of the said fifth of the revenues on March the founder and the precepts of the law, is that which in our
1, 1864, were grandchildren, sons of sons of the younger judgment must continue to prevail, and is that which we shall
children of the founder, that is, the last recipients according follow in determining the proportion which corresponds to the
to the restrictive hypothesis, notwithstanding all this, the law, plaintiffs in the half of the fifth of the properties of this
when giving to these recipients of the revenue a fifth of the foundation.
property, reserved one-half therefor for the
immediate successors, who are the subsequent
Of the eight younger children four died without succession
descendants of said grandchildren, sons of sons of the
and the other four are the descendants of the plaintiffs in this
younger children of the founder.
cause. Hence, four of the eight portions, that is, one-half of
the fifth of the properties of this foundation, belong to the
And such recipients of the fifth, whoever they may have plaintiffs herein under the plan of division which has just
been on March 1, 1864 — for they have not been identified been indicated. The other four portions, that is, the
in the record — did not dispose of the participations which remaining one-half of the said fifth, which would have
the law granted them in and to the fifth of the properties of corresponded to the stirps of the other four younger children,
this mayorazgo, and at their death their said participations in if they had died leaving succession, accrue, so to speak,
the property passed by operation of law to their heirs. On the both to the descendants of the younger children leaving
other hand, their immediate successors — the record does succession and to the other descendants of the founder.
not show who they were — in whose favor the ownership of
the other one-half of the fifth of the properties was reserved,
The distribution of this accretion is made in obedience to a
did not dispose of their participation, which, when said
plan distinct from that above indicated, because the founder,
immediate successors died, also passed to their heirs by
foreseeing the contingency, did not prescribe a quota for
operation of law.
each stirps of his younger children, but ordered that it be
delivered to descendants of both classes, without distinction
And according to the facts admitted in this proceeding, the of lines or stirps. Consequently, this one-half in accretion
plaintiffs must be and are such heirs, both of the then should be distributed among the descendants of the founder
recipients and of their immediate successors, for they are in general, who are the plaintiffs and some of the
defendants, but bearing in mind the different rights with Rivera; and by Doña Sara Rocha Rivera (paragraphs 7 to 11
which each heir participates, by reason of the greater or of the complaint, admitted by paragraph 1 of the stipulation
lesser proximity of his relationship to the founder, for the of facts.) All these said heirs of the stirps of Doña Gregoria
purpose of determining if he is to inherit per capita or per M. Tuason, sixteen in number, are great grandchildren of the
stripes. We say some of the defendants, because with the said younger daugher, Doña Gregoria. To each one of them
exception of the ten mentioned in paragraph 5 of the corresponds a sixteenth part of a fortieth part of the whole of
complaint, the other defendants are either persons whose the properties, or one six-hundred-fortieth part (1/640) of the
relationship has not been determined (paragraph 6 of the properties, or eight thousand seven hundred fifty pesos and
complaint) or have refused to become parties to this action twenty-seven and one-fourth centavos (P8,750.27 and 1/4
(paragraph 30, of the complaint). centavo) of the total assessed value.

From what has been said it follows that one-half of the fifth of The stirps of Don Pablo Tuason is represented among the
the properties corresponding to the younger sons leaving plaintiffs by heirs who participate in their own right and by
succession, four-fortieth parts (4/40) of the whole of the heirs who claim by representation because they inherit with
properties of this foundation must be divided into four equal relatives of the generation of the same degree as their
portions, because one portion, or one-fortieth part (1/40) proximate ascendants. Among the former are Doña Ciriaca
corresponds to each stirps of the said four younger children. Tuason; Don Cayetano Tuason; Don Pablo Leon Tuason;
The other one-half of the said fifth, that is to say, the other Don Tomas Mercado; Doña Victoria Rufina Tuason; Doña
four-fortieth parts (4/40) of the whole of the properties of this Ana Consolacion Tuason; and Doña Asuncion Romana
foundation must be distributed in general among the Tuason, widow of Caballero. Among the heirs who take by
plaintiffs and some of the defendants, taking into representation are Don Gaston O'Farrell, who represents his
consideration the circumstances of their respective deceased father, Don Jose O'Farrell, Doña Remedios Ayala
heirships. de Reyes and Doña Concepcion Ayala, widow of Beltran,
who represent their deceased mother, Doña Maria O'Farrell
de Ayala; the minors Doña Consuelo, Don Juan, Doña
These properties may be considered as having been
Rosario and Doña Carmen Tuason y Rosello, who inherit in
appraised in accordance with provisions of article 4 of the
representation of their deceased father, Don Juan Tuason;
Disentailing Law, inasmuch as the parties, in paragraph 9 of
and Don Vicente L. Legarda who represents his deceased
the stipulation of facts, have agreed that for all purposes
father Don Miguel Legarda Lerma (paragraphs 13 to 15, 20
relating to the decision of this cae, the total value of the
to 22, and 24 of the complaint, admitted in paragraph 1 of
properties of this foundation is five million six hundred
the stipulation of facts). These heirs who inherit in their own
thousand one hundred sixty-eight pesos (P5,600,168).
right; together with the persons represented by those who
inherit by representation, make a total of eleven great
The one-half of the fifth, or the four-fortieth parts (4/40) grandchildren of the said younger son Don Pablo Tuason.
which are to be distributed equally between the stirps of the To each of said heirs claiming in their own right and the
four younger sons having descendants, is equivalent, persons represented by the others, corresponds an eleventh
according to that valuation of the properties, to five hundred part of a fortieth part of the total of the properties, namely,
sixty thousand sixteen and 80/100 pesos (P560,016.80), or one four-hundred-and-fortieth part (1/440) of the properties,
one hundred forty thousand four and 20/100 pesos or twelve thousand seven hundred twenty-seven pesos and
(P140,004.20), which is one-fortieth part (4/40) for each sixty-five centavos and five elevenths of a centavo
stirps. (P12,727.65 and 5/11 the of a centavo) of the total assessed
value.
Of said four stirpes that of the younger son, Don Felix Bolois
Tuason is represented among the plaintiffs by Don Francisco The stirps of Don Santos Luciano Tuason is represented
Beech y Rojo, together with his aunts (cousins of his mother among the plaintiffs by Doña Cirila Tuason, widow of Calvo;
Doña Pilar Rojo y Tuason, a great granddaughter of the said by Doña Mariana Aurelia Tuason; and by Don Santiago
younger son), and therefore he inherits in representation of Alvarez. These three are all of the same degree of
his and mother; by Doña Teodora Benitez Tuason de Reyes; relationship to the said younger son, whose great
by Doña Romana Fuentes de Salgado, and by Doña Urbana grandchildren they are (paragraphs 17 to 19 of the
Francisco de Guevara. These three are great complaint, admitted in paragraph 1 of the stipulation of
granddaughters of the said younger son. Don Felix Bolois facts). To each one of these three heirs corresponds one-
Tuason (paragraphs 12, 16, 23, 25 of the complaint, third of the fortieth part of the total of the properties, or one
admitted in paragraph 1 of the stipulation of facts). To each one-hundred and twentieth part (1/20) of the properties, or
one of these four heirs corresponds a fourth part of the forty-six thousand six hundred sixty-eight pesos and six
fortieth part above-mentioned, of the assessed value of centavos and two-thirds of a centavo (P46,668.06 and 2/3 of
thirty-five thousand one and 05/100 pesos (P35,001.05). a centavo) of the total appraised value.

The stirps of Doña Gregoria M. Tuason is represented Of the other one-half of the fifth of these properties, and
among the plaintiffs by Don Antonio Maria Barretto y Rocha; which is to be distributed in general, as we have already
by Doña Guadalupe Angelica Barretto, widow of Balbas; by said, between plaintiffs and some of the defendants, and
Doña Isabel Rocha Pereyra; by Doña Enriqueta Rocha which represents four-fortieth parts (4/40), or P560,016.80,
Pereyra; by Don Alfredo Rocha Pereyna; by Don Clodoaldo according to the appraised value, the heirs are the said
Rocha Pereyra; by Doña Carmen Rocha Pereyra de Beech; plaintiffs, who are thirty-three in number altogether, including
by Don Antonio Rocha Pereyra; by Don Santiago Rocha y those who inherit in their own right and those who are to
Ruiz Delgado; by Doña Rosario Rocha y Ruiz Delgado de inherit by representation, plus ten defendants whose
Larroquete; by Don Julio Rocha y Ruiz Delgado; by Don relationship to the founder is shown by the records and who
Andres Rocha y Ruiz Delgado; by Don Alfonso Rocha are parties to this action, their names being: Don Augusto
Uceda; by Don Angel Rocha Rivera; by Doña Araceli Rocha Huberto Tuason y de la Paz, Doña Maria Soterranea Tuason
y de la Paz, Don Demeterio Asuncion Tuason y de la Paz, With regard to these accounts the following agreement was
Don Mariano Severo Tuason y de la Paz, Doña Teresa made in the stipulation of facts:
Eriberta Tuason y de la Paz, Don Angel Ordoñez (alias
Angel M. Tuason), Don Antonio M. Tuason, Doña Paz
xxx xxx xxx
Tuason de Gonzalez, Doña Consuelo Tuason de Quimson
and Doña Rosario Gonzalez, widow of Tuason. (Paragraphs
5 and 26 of the complaint, admitted in paragraph 1 of the 10. That the receipts and expenses of the properties on
stipulation of facts.) That is to say, this one-half of the fifth is Calle Rosario are those which appear in the statement
to be divided into one hundred forty-three equal parts, each hereunto attached, marked Exhibit 2, and that said
portion being four one-thousand-seven-hundred and statement is taken from the books of the defendants.
twentieth parts (4/1720) or one four-hundred-and-thirtieth
part (1/430) of the whole of the properties, or thirteen
thousand twenty-three pesos and sixty-four centavos and 11. That the receipts and expenditures of
the Haciendas Santa Mesa-Diliman and Mariquina
twenty-eighth forty-three of a centavo (P13,023.64 and 28/43
of a centavo) of the appraised value for each heir inheriting are also those which appear in the annexed
in his own right, and for each person represented by the statement, marked Exhibit 3, which is also taken
from the bloods of the defendants.
heirs who inherit by representation.

The plaintiffs who participate with the defendants in the half 12. That the stipulation contained in the two
preceding paragraphs shall not prevent the parties
of the fifth of the properties are four grandsons who share
with their uncles who are great great grandsons. These four plaintiffs from impugning, as incorrectly charged,
grandsons who inherit by representation are the following: any of the item which appear in the said two
statements.
Don Gaston O'Farrell, Don Vicente L. Legarda and Don
Santiago Alvarez, who represent respectively their deceased
fathers, for which reason their participations are entire units; The accounts mentioned include those of all the properties
the sisters Doña Remedios and Doña Concepcion Ayala, of this foundation, for the properties mentioned in the
who participate jointly in one unit; so also the minors Doña paragraphs which have been transcribed above are those
Consuelo, Don Juan, Doña Rosario and Doña Carmen which constitute the properties entailed by the founder, Don
Tuason y Rosello, who also receive jointly a single Antonio Tuason, as alleged in paragraph 31 of the
participation; and in like manner the sisters Doña Cirila and complaint, admitted in paragraph 1 of said stipulation of
Doña Martina Aurelia Tuason also participate jointly in one facts; and the said accounts, Exhibits 2 and 3, correspond to
unit. the period comprised between the 1st day of January, 1904,
and the 31st of December, 1922.
With respect to these three descendants of the younger son,
Don Santos Luciano, the peculiarity exists that within their None of the items contained in these accounts having been
stirps the three heirs receives equally, as all are of equal successfully impugned, they must be considered, and we
degree of relationship with their common ancestor, the said shall consider them, as correct by virtue of the stipulation
younger son. But when they concur with the other above inserted.
codescendants of the founder, their shares change because
they inherit by representation, as they concur with uncles,
cousins of their fathers, the result being that in such case the These accounts beginning January 1, 1904, and which are
participation of Don Santiago Alvarez is entire, he being the presumed to be the consequence and continuation of those
sole representative of his father, while that of the two sisters of previous years, having been admitted, it is our
Doña Cirila and Doña Marina is one-half for each, because understanding that plaintiffs cannot now legally claim an
both of them represent their father. accounting for the time prior to the 1st of January, 1904.

Don Jose Rocha y Ruiz and Doña Remedios Aragon y The are, however, entitled to a liquidation of the accounts as
Rocha, also descendants of younger sons, do not participate to the expenses and revenues of said properties, and to
in the fifth of the properties because in 1905 and 1916 they receive the corresponding revenue from the 1st of January,
respectively sold their participations to the defendants. For 1923, until the defendants shall deliver to them their
this reason their names were not taken into consideration in respective participations in the properties of this foundation.
the distribution of the fifth of the properties in the preceding
paragraphs. Consequently, the plaintiffs are entitled to receive their
respective participations in the fifth of the revenue
Among the petition of the complaint in this case is one to the corresponding to the period which begins from the 1st of
effect that the defendants, Augusto, Demetrio, Mariano, January, 1904, until the 31st of December, 1922, in
Maria Soterranea and Teresa Tuason y de la Paz, and accordance with the accounts which appear in Exhibits 2
Messrs. Antonio Ma. Tuason, Angel Ordoñez (alias Angel M. and 3.
Tuason) be required to render an account of the receipts,
expenditures and profits of this entail from February 4, 1874, Plaintiffs are also entitled to the rendition of an account of
to January 1, 1922, and deliver to the plaintiffs the part the income and products of the said properties from the 1st
corresponding to the latter in the net revenue produced by of January, 1923, until such time as their participations in the
the said properties, deducting that which each of the properties of this foundation are delivered to them, as also to
plaintiffs may have received prior to the commencement of receive that which pertains to them of the fifth of the
this action. revenues of said properties during said period beginning with
the 1st of January, 1923.
JUDGMENT one-tenth of a fortieth part of all the properties of this
foundation, or its appraised value of twelve thousand seven
hundred twenty-seven pesos and sixty-five centavos and five
By virtue of the foregoing considerations and conclusions it
elevenths of a centavo (P12,727.65 and 5/11 of a centavo);
is hereby ordered and decreed that the decision of the Court
and furthermore a forty-third part of the other half of the fifth
of First Instance of Manila rendered herein be and it is
of said properties, or its appraised value of thirteen thousand
reversed, and it is declared that the plaintiffs are entitled to
twenty-three pesos and sixty-four centavos and twenty-eight
participate in a fifth of the properties of this foundation and
forty-thirds of a centavo (P13,023.64 and 28/43 of a
its revenues in the proportions and amounts hereinafter
centavo), upon the same two grounds as those which
stated, and that the registration of the title to the said
constitute the basis of the adjudications made in paragraph
properties under Act No. 496 is not an impediment to its
A of this judgment.
division and the transfer to the plaintiffs, as beneficiaries, of
the portions which we shall determine; wherefore it is
ordered: (d) Jointly to the two plaintiffs, Doña Remedios Ayala de
Reyes and Doña Concepcion Ayala, widow of Beltran, in
equal parts, also one-tenth (for the two, not one for each
First. That the defendants, Don Augusto, Don Demetrio, Don
one) of a fortieth part of all the properties of this foundation,
Mariano, Doña Maria Soterranea and Doña Teresa Tuason y
or its appraised value of twelve thousand seven hundred
de la Paz and Don Antonio Ma. Tuason, Don Angel Ordoñez
twenty-seven pesos and sixty-seven centavos and three
(alias Angel M. Tuason), with the intervention of the
elevenths of a centavo (P12,727.67 and 3/11 of a centavo);
plaintiffs, partition the properties of the foundation which is
and also a forty-third part (for the said two plaintiffs) of the
the subject-matter of the present cause, and deliver the
other half of the fifth of said properties, or its appraised value
respective participations, or their value, to the persons and in
of thirteen thousand twenty-three pesos and sixty-four
accordance with the amounts to be specified hereafter, to
centavos and twenty-eight forty-thirds of a centavo
wit:
(P13,023.64 and 28/43 of a centavo) upon the same two
grounds as those which constitute the basis of the
(a) To each of the four plaintiffs, Don Francisco Beech y adjudications made in paragraph A of the present judgment.
Rojo, Doña Teodora Benitez Tuason de Reyes, Doña
Romana Fuentes de Salgado and Doña Urbana Francisco
(e) Jointly to the four minors, Doña Consuelo, Don Juan,
de Guevera, a fourth of a fortieth part of all the properties of
Doña Rosario and Doña Carmen Tuason y Rosello, in equal
this foundation, or its respective appraised value of thirty-five
parts, one-tenth (for the four, not for each) of a fortieth part
thousand one pesos and five centavos (P35,001.05) as their
of all the properties of this foundation, or its appraised value
participation in the one-half of the fifth of the properties in
of twelve thousand seven hundred twenty-seven pesos and
conjunction with their codescendants of the younger sons;
sixty-five centavos and five elevenths of a centavo
and one-forty-third part of the other one-half of the fifth or
(P12,727.65 and 5/11 of a centavo); and also a forty-third
four-fortieth parts of the said properties, or its appraised
part (for the said four plaintiffs) of the other half of the fifth of
value of thirteen thousand twenty-three pesos and sixty four
said properties, or its appraised value of thirteen thousand
centavos and twenty-eight forty-thirds of a centavo
twenty-three pesos and sixty-four centavos and twenty-eight-
(P13,023.64 and 28/43 of a centavo) as their participation in
forty-thirds of a centavo (P13,023.64 and 28/43 of a
the other one-half of the fifth of the properties in conjunction
centavo), upon the same two grounds as those which
with the other descendants of the founder.
constitute the basis of the adjudication made in paragraph A
of this judgment.
(b) To each of the sixteen plaintiffs, Don Antonio Maria
Barretto y Rocha, Doña Guadalupe Angelica Barretto, widow
(f) To each of the three plaintiffs, Doña Cirila Tuason, widow
of Balbas, Doña Isabel Rocha Pereyna, Doña Enriqueta
of Calvo, Doña Marina Aurelia Tuason and Don Santiago
Rocha Pereyna, Don Alfredo Rocha Pereyna, Don
Alvarez, one-third of a fortieth part of the whole of the
Clodoaldo Rocha Pereyna, Doña Carmen Rocha Pereyna
properties of this foundation, or its appraised value of forty-
de Beech, Don Antonio Rocha Pereyna, Don Santiago
six thousand six hundred sixty-eight pesos and six centavos
Rocha y Ruiz Delgado, Doña Rosario Rocha y Ruiz Delgado
and two thirds of a centavo (P46,668.08 and 2/3 of a
de Larroquete, Don Julio Rocha y Ruiz Delgado, Don
centavo); and furthermore to the two sisters Doña Cirila
Andres Rocha y Ruiz Delgado, Don Alfonso Rocha Uceda,
Tuason, widow of Calvo, and Doña Martina Aurelia Tuason,
Don Angel Rocha Rivera, Doña Araceli Rocha Rivera and
jointly, a forty-third part of the other half of the fifth of said
Doña Sara Rocha Rivera, one-sixteenth of a fortieth part of
properties, or its appraised value of thirteen thousand
all the properties of this foundation, or its appraised value of
twenty-three pesos and sixty-four centavos and twenty-eight
eight thousand seven hundred fifth pesos and twenty-six
forty-thirds of a centavo (P13,023.64 and 28/43 of a
centavos and one-fourth of a centavo (P8,750.26 and 1/4 of
centavo); and to Don Santiago Alvarez a forty-third of the
a centavo); and furthermore a forty-third part of the other half
said other half of the fifth of said properties, or its appraised
of the fifth of said properties, or its appraised value, of
value of thirteen thousand twenty-three pesos and sixty-four
thirteen thousand twenty-three pesos and sixty four centavos
centavos and twenty-eight forty-thirds of a centavo
and twenty-eight forty-thirds of a centavo (P13,023.64 and
(P13,023.64 and 28/43 of a centavo), all on the same two
28/43 of a centavo), the adjudication being made upon the
grounds as those which constitute the basis of the
same grounds as the adjudications in the preceding
adjudications made in paragraph A of the present judgment.
paragraph.

Second. That the defendant deliver to the plaintiffs named in


(c) To each of the nine plaintiffs Doña Ciriaca Tuason, Don
paragraphs A, B, C, D, E and F of the present judgment and
Cayetano Tuason, Don Pablo Tuason, Don Tomas Mercado,
in the same proportion established for the distribution made
Doña Victoria Rufina Tuason, Doña Ana Consolacion
in said paragraphs A, B, C, D, E and in the first part of
Tuason, Doña Asuncion Romana Tuason, widow of
paragraph F, the portions which respectively pertain to the
Caballero, Don Gaston O'Farrell and Don Vicente L. Legarda
said plaintiffs of the fifth of the revenues of this mayorazgo,
as shown by Exhibits 2 and 3, from the 1st of January, 1904, The following is a copy of the evidence which appears of
to the 31st of December, 1922: Provided, That the plaintiffs record on this particular point, being a part of the testimony
mentioned in paragraph 2 of the cross-complaint of the of the said Isabeo Jena:
defendants have already received their share of the revenue,
and shall not receive it again for the years specified in said Q. Â Â Â 1641 Â Â Who first signed the will?
counter-claim.
A. Â Â Â 1641 Â Â I signed it first, and afterwards
Third. That the defendants render an account of the Aniceto and the others.
revenues of the properties of this entail from January 1,
1923, until they deliver to plaintiffs their respective Q. Â Â Â 1641 Â Â Who were those others to whom you
participations in said properties, in accordance with have just referred?
paragraphs A, B, C, D, E and F of the present dispositive
part, and that they deliver to the plaintiffs named in said A. Â Â Â 1641 Â Â After the witness Aniceto signed the
paragraphs, in the proportion therein specified, their will I left the house, because I was in a hurry, and at the
participations in the fifth of the revenues of said properties moment when I was leaving I saw Julio Javellana with the
corresponding to the said period of time following January 1, pen in his hand in position ready to sign (en actitud de
1923. firmar). I believe he signed, because he was at the table. . .
.
Fourth. That the partition of the real estate herein decreed Q. Â Â Â 1641 Â Â State positively whether Julio
shall be carried out in accordance with the provisions of Javellana did or did not sign as a witness to the will.
section 184 of the Code of Civil Procedure, and section 84 of
Act No. 496 by causing a technical description to be made of A. Â Â Â 1641 Â Â I can’t say certainly, because as I was
the portions partitioned, and by the execution by the leaving the house I saw Julio Javellana with the pen in his
defendants of the proper deeds of conveyance and the hand, in position ready to sign. I believe he signed.
delivery to the registrar of the corresponding certificates of
title for the issuance of new certificates of title in favor of the Q. Â Â Â 1641 Â Â Why do you believe Julio Javellana
defendants. signed?

Fifth. That in case the parties should not agree as to the A. Â Â Â 1641 Â Â Because he had the pen in his hand,
manner in which such partition is to be effected, the court which was resting on the paper, though I did not actually
below, in this proceeding, shall appoint commissioners to see him sign.
that effect, all in accordance with the provisions of section
184 of the Code of Civil Procedure, and other applicable Q. Â Â Â 1641 Â Â Explain this contradictory statement.
provisions of the Code of Civil Procedure.
A. Â Â Â 1641 Â Â After I signed I asked permission to
No judgment will be entered as to costs. So ordered. leave, because I was in a hurry, and while I was leaving
Julio had already taken the pen in his hand, as it appeared,
for the purpose of signing, and when I was near the door I
Avanceña, C.J., Street, Malcolm, Villamor, Ostrand, Johns happened to turn my face and I saw that he had his hand
and Villa-Real, JJ., concur. with the pen resting on the will, moving it as if for the
purpose of signing.
Republic of the Philippines
SUPREME COURT Q. Â Â Â 1641 Â Â State positively whether Julio moved
Manila his hand with the pen as if for the purpose of signing, or
whether he was signing
EN BANC
A. Â Â Â I believe he was signing.
January 19, 1906
The truth and accuracy of the testimony of this witness does
G.R. No. 1641 not seem to have been questioned by any of the parties to
GERMAN JABONETA, plaintiff-appellant, the proceedings, but the court, nevertheless, found the
vs. following facts:
RICARDO GUSTILO, ET AL., defendants-appellees.
On the 26th day of December, 1901, Macario Jaboneta
executed under the following circumstances the document in
CARSON, J.: question, which has been presented for probate as his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this


In these proceedings probate was denied the last will and
testament of Macario Jaboneta, deceased, because the
province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena, and
lower court was of the opinion from the evidence adduced at
the hearing that Julio Javellana, one of the witnesses, did
Isabelo Jena as witnesses, executed the said document as
his will. They were all together, and were in the room where
not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions
Jaboneta was, and were present when he signed the
of section 618 of the Code of Civil Procedure.
document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a
witness in the presence of the testator, and in the presence
of the other two persons who signed as witnesses. At that Macario Jaboneta, deceased, and that it should therefore be
moment Isabelo Jena, being in a hurry to leave, took his hat admitted to probate.
and left the room. As he was leaving the house Julio
Javellana took the pen in his hand and put himself in The judgment of the trial court is reversed, without especial
position to sign the will as a witness, but did not sign in the condemnation of costs, and after twenty days the record will
presence of Isabelo Jena; but nevertheless, after Jena had be returned to the court form whence it came, where the
left the room the said Julio Javellana signed as a witness in proper orders will be entered in conformance herewith. So
the presence of the testator and of the witness Aniceto ordered.
Jalbuena.
Republic of the Philippines
We can not agree with so much of the above finding of facts SUPREME COURT
as holds that the signature of Javellana was not signed in Manila
the presence of Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure. The fact that
Jena was still in the room when he saw Javellana moving his EN BANC
hand and pen in the act of affixing his signature to the will,
taken together with the testimony of the remaining G.R. No. L-5971 February 27, 1911
witnesses which shows that Javellana did in fact there and
then sign his name to the will, convinces us that the
BEATRIZ NERA, ET AL., plaintiffs-appellees,
signature was affixed in the presence of Jena. The fact that
vs.
he was in the act of leaving, and that his back was turned NARCISA RIMANDO, defendant-appellant.
while a portion of the name of the witness was being
written, is of no importance. He, with the other witnesses
and the testator, had assembled for the purpose of CARSON, J.:
executing the testament, and were together in the same
room for that purpose, and at the moment when the witness The only question raised by the evidence in this case as to
Javellana signed the document he was actually and the due execution of the instrument propounded as a will in
physically present and in such position with relation to the court below, is whether one of the subscribing witnesses
Javellana that he could see everything which took place by was present in the small room where it was executed at the
merely casting his eyes in the proper direction, and without time when the testator and the other subscribing witnesses
any physical obstruction to prevent his doing so, therefore attached their signatures; or whether at that time he was
we are of opinion that the document was in fact signed outside, some eight or ten feet away, in a large room
before he finally left the room. connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one
The purpose of a statutory requirement that the witness sign in the outside room to see the testator and the other
in the presence of the testator is said to be that the testator subscribing witnesses in the act of attaching their signatures
may have ocular evidence of the identity of the instrument to the instrument.
subscribed by the witness and himself, and the generally
accepted tests of presence are vision and mental A majority of the members of the court is of opinion that this
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, subscribing witness was in the small room with the testator
and cases there cited.) and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding,
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held of course, disposes of the appeal and necessitates the
that it is sufficient if the witnesses are together for the affirmance of the decree admitting the document to probate
purpose of witnessing the execution of the will, and in a as the last will and testament of the deceased.
position to actually see the testator write, if they choose to
do so; and there are many cases which lay down the rule The trial judge does not appear to have considered the
that the true test of vision is not whether the testator determination of this question of fact of vital importance in
actually saw the witness sign, but whether he might have the determination of this case, as he was of opinion that
seen him sign, considering his mental and physical condition under the doctrine laid down in the case of Jaboneta vs.
and position at the time of the subscription. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
(Spoonemore vs. Cables, 66 Mo., 579.) subscribing witnesses was in the outer room when the
The principles on which these cases rest and the tests of testator and the other describing witnesses signed the
presence as between the testator and the witnesses are instrument in the inner room, had it been proven, would not
equally applicable in determining whether the witnesses be sufficient in itself to invalidate the execution of the will.
signed the instrument in the presence of each other, as But we are unanimously of opinion that had this subscribing
required by the statute, and applying them to the facts witness been proven to have been in the outer room at the
proven in these proceedings we are of opinion that the time when the testator and the other subscribing witnesses
statutory requisites as to the execution of the instrument attached their signatures to the instrument in the inner room,
were complied with, and that the lower court erred in it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the
denying probate to the will on the ground stated in the
presence" of the witness in the outer room. This because the
ruling appealed from.
line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded
We are of opinion from the evidence of record that the by the curtain separating the inner from the outer one "at the
instrument propounded in these proceedings was moment of inscription of each signature."
satisfactorily proven to be the last will and testament of
In the case just cited, on which the trial court relied, we held This is an administration proceeding from the Court of First
that: Instance of the Province of Tayabas whereby the petitioner,
Sinforoso de Gala, seeks to enforce the liquidation of the
estate of his father, Pedro de Gala, deceased, against
The true test of presence of the testator and the
Josefa Alabastro, as widow, and Generoso de Gala, a son of
witnesses in the execution of a will is not whether
the decedent and half-brother of the plaintiff, and to recover
they actually saw each other sign, but whether
from them the hereditary portion which the plaintiff alleges
they might have been seen each other sign, had
pertains to him in said estate. Opposition was made to the
they chosen to do so, considering their mental and
proceeding by the two defendants, and this opposition finally
physical condition and position with relation to
took the form of a motion to exclude the plaintiff from the
each other at the moment of inscription of each
participation in the estate on the ground that he had no
signature.
heritable interest therein. Upon considering this motion the
trial court sustained the plaintiff's right and denied the
But it is especially to be noted that the position of the parties motion. From this order the defendants appealed.
with relation to each other at the moment of the subscription
of each signature, must be such that they may see each
The first point raised in the appellants' bill of exceptions has
other sign if they choose to do so. This, of course, does not
reference to a matter of procedure, which, in the view we
mean that the testator and the subscribing witnesses may be
take of the case, is not necessary to the decision. We
held to have executed the instrument in the presence of
therefore provisionally assume that no error was committed
each other if it appears that they would not have been able
by the trial judge in entertaining the motion which gave origin
to see each other sign at that moment, without changing
to the appealed order; and we pass at once to the
their relative positions or existing conditions. The evidence in
consideration of the question of substantive law involved in
the case relied upon by the trial judge discloses that "at the
the case. The facts are unfortunately few and undisputed.
moment when the witness Javellana signed the document
he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that It appears that Pedro de Gala died intestate in the City of
took place by merely casting his eyes in the proper direction Manila on or about July 23, 1919, leaving an estate in the
and without any physical obstruction to prevent his doing Province of Tayabas and in the City of Manila, consisting of
so." And the decision merely laid down the doctrine that the real and personal property. It is stated in the petition that the
question whether the testator and the subscribing witnesses value of this estate is approximately five hundred thousands
to an alleged will sign the instrument in the presence of each pesos (P500,000), with an annual income of about fifty
other does not depend upon proof of the fact that their eyes thousand pesos (P50,000). The defendants do not admit that
were actually cast upon the paper at the moment of its the value of the estate reaches the amount stated, but it is
subscription by each of them, but that at that moment evidently large. The plaintiff, Sinforoso de Gala, is a natural
existing conditions and their position with relation to each son of Pedro de Gala and was born on June 17, 1879, while
other were such that by merely casting the eyes in the Generoso de Gala, one of the defendants herein, is a
proper direction they could have seen each other sign. To legitimate son of Pedro de Gala and was born on July 17,
extend the doctrine further would open the door to the 1881. As already stated, the other defendant, Josefa
possibility of all manner of fraud, substitution, and the like, Alabastro, is the widow of Pedro de Gala
and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in
The plaintiff, Sinforoso de Gala, was never recognized as a
the execution of a will.
natural son by the voluntary act of his father, Pedro de Gala,
in life; and in order to enforce recognition the plaintiff, on
The decree entered by the court below admitting the august 29, 1917, instituted an action against his father to
instrument propounded therein to probate as the last will and compel recognition. While this litigation was pending Pedro
testament of Pedro Rimando, deceased, is affirmed with de Gala died, and Josefa Alabastro and Generoso de Gala
costs of this instance against the appellant. were substituted as defendants. When the cause was finally
heard in the Supreme Court, upon appeal from a judgment
of the Court of First Instance, which had been unfavorable to
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
the plaintiff, said judgment was reversed and judgment was
here entered requiring the defendants to recognize the
Republic of the Philippines plaintiff as the natural son of Pedro de Gala (De Gala, 42
SUPREME COURT Phil., 771). Pursuant to said judgment, and in order to obtain
Manila his share in the estate of his deceased father, the present
proceeding was begun.
EN BANC
The right of the plaintiff to participate in the estate of his
deceased father is based upon articles 134 and 942 in
G.R. No. L-27989 February 8, 1928
relation with article 840 of the Civil Code, defining the
heritable portion of a recognized natural child in case of the
Intestate of the deceased Pedro de Gala. concurrence of such heir with one or more legitimate
SINFOROSO DE GALA, petitioner-appellee, children. In this connection it will be remembered that the
vs. right of a recognized natural child to inherit any part of the
GENEROSO DE GALA and JOSEFA estate of his father was, in Spanish law, first conferred by the
ALABASTRO, opponents-appellants. Civil Code, which went into effect in the Philippine Islands on
December 8, 1889.
STREET, J.:
In support of the plaintiff's right to participate in the estate, Civil Code, we are of the opinion that No. 12 of the
reference is made to subsection 12 of the transitory Transitory Provisions is of exact and particular application,
provisions of the Civil Code wherein it is stated, in effect, that and that there is nothing in No. 1 of the same provisions
the estates of those who die, with or without will, which supplies any obstacle to the application of No. 12 to
subsequently to the taking effect of the Civil Code, shall be the facts of this case. In paragraph No. 12 it is expressly
allotted and divided according to the Code, and that the legal declared that the estates of those who die after the Code
portion given by the Code shall be respected. The becomes effective shall be distributed according to the Code
defendants on the contrary question the heritable right of the and that legal portions shall be respected. This language can
plaintiff, basing their contention on No. 1 of the transitory have no other meaning than that the hereditary portion given
provisions, as interpreted by this court in Rocha vs. Tuason to the recognized natural child By No. 3 of article 134 of the
and Rocha de Despujols (39 Phil., 976). Civil Code shall be recognized as valid, for the circumstance
that the plaintiff in this case, though beginning his action for
acknowledgement within the life of his father, did not
The transitory provisions thus brought under discussion are
succeed in obtaining a judgment compelling recognition until
vital to the case and are therefore here reproduced:
after his father was dead cannot be considered in any wise
prejudicial to him. That No. 12 of the Transitory Provisions is
Changes introduced by this Code prejudicial to applicable to the estates of persons dying after the Civil
rights acquired under prior civil law shall not have Code went into effect is recognized in decisions of the
rotroactive effect. Supreme Court of Spain dated respectively March 20, 1897,
and June 24, 1897; and this doctrine is expounded by
Manresa in his comment upon No. 12 as follows:
For the application of the corresponding legislation
in cases not expressly determined in the Code, the
following rule shall be observed: Here is the legal reason and at the same time the
determination of the scope and meaning of the
rule of which we speak. It does not mean that the
1. Rights originating, according to prior legislation,
succession shall be governed by one or the other
in acts that occurred under the regimen of such law according to whether the ancestor may have
legislation shall be governed thereby, even if the died before or after the Code went into effect, nor
Code regulates them in some other way or does was there are need of making such a statement,
not recognize them. But if the right shall have because this is already provided for in rule 2, and
been declared for the first time in this Code, it shall what is provided for in the present rule by way of
have effect at once, although the fact originating it exception to what is provided for in the former is
may have occurred under the former regimen, that the rights of forced heirs to the inheritance in
whenever it is not prejudicial to any other acquired
successions opened after the Civil Code went into
right of equal origin. effect shall always be governed by the provisions
of the latter, to which end the provisions of wills
xxx xxx xxx executed before May 1st, 1889, referring to the
rights of said heirs, will be adjusted to the
provisions of said Code.
12. Rights to the inheritance of one who may have
died, with or without a will, before this Code goes
into effect, shall be governed by prior legislation. The reason of that is obvious, because in the
The inheritance of those dying afterwards, with or matter of succession there is no vested right until
without a will, shall be allotted and divided in the succession is opened that is, till the death of
accordance with this Code, but in harmony, in so the person whose inheritance is in question, as we
far as the latter permits it, with the testamentary have already said on another occasion, and by the
dispositions. Therefore legal portions, betterments, present it is made to conform with the precepts of
and legacies shall be respected; but their amounts modern legislation, harmonizing it and making it
shall be reduced when it is not possible in any compatible with the transcedent reform effected by
other manner to give to each participant in the the Civil Code.
inheritance the share pertaining to him according
to this Code. The Supreme Court, in its decision of June 24,
1897, giving the same explanation to the present
From the facts already stated it will be seen that both the rule, declared that the principle of the irretroactivity
natural and the legitimate son of Pedro de Gala were born of the new law governs only such rights as
before the Civil Code went into effect in these Islands; while originated under the regimen of the old law, it
the death of the father and the enforced judicial recognition being well known that hereditary rights do not vest
of the natural son occurred under the regimen of said Code. until the death of the person whose inheritance is
It is a tenable assumption that the legal recognition of the in question. Therefore, they cannot be governed
plaintiff as a natural son should be considered as effective by the old law if the death is posterior to the new,
from the date of the filing of the complaint in 1917; but if not which is the very thing we have stated as being
to so, it was at least effective from the date of the judgment the foundation of juridicial reason of this precept.
entered in 1992. For the purposes of this suit the point is
unimportant, since it is clear that in any case legal Directing our attention now to No. 1 of the Transitory
recognition did not occur until long after the Civil Code
Provisions, which is supposed by the appellants to be
became effective in these Islands. incompatible with the right asserted by the plaintiff, we note
first that proposition No. 1 of a more general nature than
As the death of Pedro de Gala and the opening of the proposition No. 12, since the latter provides a particular rule
succession to his estate occurred under the regimen of the for the distribution of the estates of persons dying after the
Code enters into effect, while No. 1 states a general rule for necessary to enter. We may observe, however, that the
harmonizing certain competing rights. In accordance then opinion of the court in the case referred to makes no
with the rule that the particular governs the general, No. 12 reference to No. 12 of the Transitory Provisions, which if
must control over No. 1. reflectively weighed, might have been found pertinent to the
decision.
It will be noted that, under No. 1, where there are two
competing rights, one of which is given for the first time by The order appealed from is in our opinion without error, and
the Code, the law looks to the acts in which the two it is accordingly affirmed, with costs. So ordered.
competing rights may have originated, and when it is found
that the acts which gave origin to the competing rights
Johnson, Ostrand, Johns, Romualdez and Villa-Real, JJ.,
occurred prior to the adoption of the Code, the right newly
concur.
recognized in the Code cannot be given effect, because
prejudicial to the other right. In the case before us, while it is
evident that the successional right of the legitimate son, Republic of the Philippines
Generoso de Gala, did not become vested until the death of SUPREME COURT
his father, yet it is also clear that this right is derived from a Manila
fact which occurred under law anterior to the Code, namely,
the fact that said son was born with the status of legitimate
son. It is this fact which originated the successional right of EN BANC
this heir. But with respect to the natural son, Sinforoso de
Gala, it is equally obvious that the act that gave origin to his G.R. No. L-4067 November 29, 1951
successional right was the enforced judicial recognition
resulting from the civil action begun by the plaintiff in 1917.
This act occurred under the Code. In this connection it must In the Matter of the will of ANTERO MERCADO,
be remembered that the fact of birth does not give the deceased. ROSARIO GARCIA, petitioner,
natural child any heritable right whatever in the estate of his vs.
father. This is equally true of both the old and the new law. It JULIANA LACUESTA, ET AL., respondents.
is the recognition of the natural child that originates his right
of succession, recognized for the first time in the Code. As a PARAS, C.J.:
consequence the two competing successional rights in this
case do not have the same origin in respect to the estate of
law under which they occurred, since one had its origin in an This is an appeal from a decision of the Court of Appeals
act occuring under the anterior legislation while the other disallowing the will of Antero Mercado dated January 3,
had its origin in an act occuring under the Code. 1943. The will is written in the Ilocano dialect and contains
the following attestation clause:

Upon analyzing the language of No. 1 of the Transitory


Provisions it will be noted that it is only when the two We, the undersigned, by these presents to declare
competing rights have their origin in acts occuring under the that the foregoing testament of Antero Mercado
old regime that the restriction applies which prohibits the was signed by himself and also by us below his
right newly granted in the Code from having it due effect. If name and of this attestation clause and that of the
the acts originating the two rights occur under the Code, or if left margin of the three pages thereof. Page three
either occurs under the Code, the Code provision must rule, the continuation of this attestation clause; this will
and the right newly given by it prevails. It is obvious, for is written in Ilocano dialect which is spoken and
instance, that if, in the case before us, the legitimate soon understood by the testator, and it bears the
had been born after the Code entered into effect, the corresponding number in letter which compose of
provisions of the Code would have prevailed; also that the three pages and all them were signed in the
same result would have followed in such case even if the act presence of the testator and witnesses, and the
of recognition of the natural so had occurred prior to the date witnesses in the presence of the testator and all
when the Code took effect. and each and every one of us witnesses.

But it is supposed that the decision of this court in the case In testimony, whereof, we sign this statement, this
of Rocha vs. Tuason and Rocha de Despujols (39 Phil., the third day of January, one thousand nine
976), is inconsistent with the right of the plaintiff. This is a hundred forty three, (1943) A.D.
mistake. In the case mentioned both the natural and the
legitimate child were born under the regimen of the old law,
and in addition to this there had been a tacit recognition of (Sgd.) NUMERIANO (Sgd.)
the natural child — which was valid under said law — long EVANGELISTA "ROSENDACORTES
prior to the date when the Civil Code went into effect. Both
the competing right in that case therefore had their origin in (Sgd.) BIBIANA
acts which occurred under the earlier regimen; and this ILLEGIBLE
circumstance makes the very case for the application of the
restriction upon the new right which is expressed in the
closing words of No. 1 of the Transitory Provisions. It may be The will appears to have been signed by Atty. Florentino
noted that three members of the court dissented in Rocha Javier who wrote the name of Antero Mercado, followed
vs. Tuason and Rocha de Despujols, a circumstance which below by "A reugo del testator" and the name of Florentino
detracts in some measure from the weight of the precedent; Javier. Antero Mercado is alleged to have written a cross
and the attorneys for the appellee have drawn in question immediately after his name. The Court of Appeals, reversing
the correctness of the judgment. Into this controversy it is not the judgement of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to certify that the On September 1, 1971, private respondent GREGORIO K.
will was signed on all the left margins of the three pages and KALAW, claiming to be the sole heir of his deceased sister,
at the end of the will by Atty. Florentino Javier at the express Natividad K. Kalaw, filed a petition before the Court of First
request of the testator in the presence of the testator and Instance of Batangas, Branch VI, Lipa City, for the probate of
each and every one of the witnesses; (2) to certify that after her holographic Will executed on December 24, 1968.
the signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the end
The holographic Will reads in full as follows:
of his name and on the left margin of the three pages of
which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages My Last will and Testament
thereon in the presence of the testator and of each other.
In the name of God, Amen.
In our opinion, the attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express I Natividad K. Kalaw Filipino 63years of age, single, and a
direction, as required by section 618 of the Code of Civil resident of Lipa City, being of sound and disposing mind and
memory, do hereby declare thus to be my last will and
Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, testament.
however, that there is no need for such recital because the
cross written by the testator after his name is a sufficient 1. It is my will that I'll be burried in the cemetery of the
signature and the signature of Atty. Florentino Javier is a catholic church of Lipa City. In accordance with the rights of
surplusage. Petitioner's theory is that the cross is as much a said Church, and that my executrix hereinafter named
signature as a thumbmark, the latter having been held provide and erect at the expose of my state a suitable
sufficient by this Court in the cases of De Gala vs. Gonzales monument to perpetuate my memory.
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
296 and Lopez vs. Liboro, 81 Phil., 429. xxx xxx xxx

It is not here pretended that the cross appearing on the will The holographic Will, as first written, named ROSA K.
is the usual signature of Antero Mercado or even one of the Kalaw, a sister of the testatrix as her sole heir. Hence, on
ways by which he signed his name. After mature reflection, November 10, 1971, petitioner ROSA K. Kalaw opposed
we are not prepared to liken the mere sign of the cross to a probate alleging, in substance, that the holographic Will
thumbmark, and the reason is obvious. The cross cannot contained alterations, corrections, and insertions without the
and does not have the trustworthiness of a thumbmark. proper authentication by the full signature of the testatrix as
required by Article 814 of the Civil Code reading:

What has been said makes it unnecessary for us to


determine there is a sufficient recital in the attestation clause Art. 814. In case of any insertion,
as to the signing of the will by the testator in the presence of cancellation, erasure or alteration in a
the witnesses, and by the latter in the presence of the holographic will the testator must
testator and of each other. authenticate the same by his full
signature.

Wherefore, the appealed decision is hereby affirmed, with


against the petitioner. So ordered. ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir thereunder.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista
Angelo, JJ., concur.
After trial, respondent Judge denied probate in an Order,
dated September 3, 197 3, reading in part:
Republic of the Philippines
SUPREME COURT
Manila The document Exhibit "C" was
submitted to the National Bureau of
Investigation for examination. The NBI
FIRST DIVISION reported that the handwriting, the
signature, the insertions and/or
G.R. No. L-40207 September 28, 1984 additions and the initial were made by
one and the same person.
Consequently, Exhibit "C" was the
ROSA K. KALAW, petitioner, handwriting of the decedent, Natividad
vs. K. Kalaw. The only question is whether
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the win, Exhibit 'C', should be admitted
the CFI of Batangas, Branch VI, Lipa City, and to probate although the alterations
GREGORIO K. KALAW, respondents. and/or insertions or additions above-
mentioned were not authenticated by
the full signature of the testatrix
MELENCIO-HERRERA, J.:
pursuant to Art. 814 of the Civil Code.
The petitioner contends that the
oppositors are estopped to assert the
provision of Art. 814 on the ground that holographic Will, which affect only the efficacy of the altered
they themselves agreed thru their words themselves but not the essence and validity of the Will
counsel to submit the Document to the itself. As it is, with the erasures, cancellations and alterations
NBI FOR EXAMINATIONS. This is made by the testatrix herein, her real intention cannot be
untenable. The parties did not agree, determined with certitude. As Manresa had stated in his
nor was it impliedly understood, that the commentary on Article 688 of the Spanish Civil Code,
oppositors would be in estoppel. whence Article 814 of the new Civil Code was derived:

The Court finds, therefore, that the ... No infringe lo dispuesto en este articulo del
provision of Article 814 of the Civil Code Codigo (el 688) la sentencia que no declara la
is applicable to Exhibit "C". Finding the nulidad de un testamento olografo que contenga
insertions, alterations and/or additions in palabras tachadas, enmendadas o entre
Exhibit "C" not to be authenticated by renglones no salvadas por el testador bajo su
the full signature of the testatrix firnia segun previene el parrafo tercero del mismo,
Natividad K. Kalaw, the Court will deny porque, en realidad, tal omision solo puede afectar
the admission to probate of Exhibit "C". a la validez o eficacia de tales palabras, y nunca
al testamento mismo, ya por estar esa disposicion
en parrafo aparte de aquel que determine las
WHEREFORE, the petition to probate
condiciones necesarias para la validez del
Exhibit "C" as the holographic will of
testamento olografo, ya porque, de admitir lo
Natividad K. Kalaw is hereby denied.
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a
SO ORDERED. la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en
From that Order, GREGORIO moved for reconsideration
perfecta armonia y congruencia con el art. 26 de
arguing that since the alterations and/or insertions were the la ley del Notariado que declara nulas las
testatrix, the denial to probate of her holographic Will would adiciones apostillas entrerrenglonados,
be contrary to her right of testamentary disposition. raspaduras y tachados en las escrituras matrices,
Reconsideration was denied in an Order, dated November 2, siempre que no se salven en la forma prevenida,
1973, on the ground that "Article 814 of the Civil Code being paro no el documento que las contenga, y con
, clear and explicit, (it) requires no necessity for mayor motivo cuando las palabras enmendadas,
interpretation." tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
From that Order, dated September 3, 1973, denying probate, pensamiento del testador, o constituyan meros
and the Order dated November 2, 1973 denying accidentes de ortografia o de purez escrituraria,
reconsideration, ROSA filed this Petition for Review on sin trascendencia alguna(l).
certiorari on the sole legal question of whether or not
theoriginal unaltered text after subsequent alterations and Mas para que sea aplicable la doctrina
insertions were voided by the Trial Court for lack of
de excepcion contenida en este ultimo
authentication by the full signature of the testatrix, should be fallo, es preciso que las tachaduras,
probated or not, with her as sole heir. enmiendas o entrerrenglonados sin
salvar saan de pala bras que no
Ordinarily, when a number of erasures, corrections, and afecter4 alteren ni uarien de modo
interlineations made by the testator in a holographic Will substancial la express voluntad del
litem not been noted under his signature, ... the Will is not testador manifiesta en el documento.
thereby invalidated as a whole, but at most only as respects Asi lo advierte la sentencia de 29 de
the particular words erased, corrected or Noviembre de 1916, que declara nulo
interlined.1 Manresa gave an Identical commentary when he un testamento olografo por no estar
said "la omision de la salvedad no anula el testamento, salvada por el testador la enmienda del
segun la regla de jurisprudencia establecida en la sentencia guarismo ultimo del año en que fue
de 4 de Abril de 1895." 2 extendido 3 (Emphasis ours).

However, when as in this case, the holographic Will in WHEREFORE, this Petition is hereby dismissed and the
dispute had only one substantial provision, which was Decision of respondent Judge, dated September 3, 1973, is
altered by substituting the original heir with another, but hereby affirmed in toto. No costs.
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect
SO ORDERED.
must be that the entire Will is voided or revoked for the
simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can
Relova, J., took no part.
neither be given effect because she failed to authenticate it
in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such


insertions, cancellations, erasures or alterations in a
Republic of the Philippines capacity of the testatrix, this probate court finds no
SUPREME COURT reason at all for the disallowance of the will for its
Manila failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the
testatrix.
SECOND DIVISION

For one, no evidence was presented to show that


G.R. No. 106720 September 15, 1994
the will in question is different from the will actually
executed by the testatrix. The only objections
SPOUSES ROBERTO AND THELMA AJERO, petitioners, raised by the oppositors . . . are that the will was
vs. not written in the handwriting of the testatrix which
THE COURT OF APPEALS AND CLEMENTE properly refers to the question of its due execution,
SAND, respondents. and not to the question of identity of will. No other
will was alleged to have been executed by the
testatrix other than the will herein presented.
PUNO, J.:
Hence, in the light of the evidence adduced, the
identity of the will presented for probate must be
This is an appeal by certiorari from the Decision of the Court accepted, i.e., the will submitted in Court must be
of deemed to be the will actually executed by the
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, testatrix.
the dispositive portion of which reads;
xxx xxx xxx
PREMISES CONSIDERED, the
questioned decision of November 19, While the fact that it was entirely written, dated
1988 of the trial court is hereby and signed in the handwriting of the testatrix has
REVERSED and SET ASIDE, and the
been disputed, the petitioners, however, have
petition for probate is hereby satisfactorily shown in Court that the holographic
DISMISSED. No costs. will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix.
The earlier Decision was rendered by the RTC of Three (3) witnesses who have convincingly shown
Quezon City, Branch 94, 2 in Sp. Proc. No. Q- knowledge of the handwriting of the testatrix have
37171, and the instrument submitted for probate is been presented and have explicitly and
the holographic will of the late Annie Sand, who categorically identified the handwriting with which
died on November 25, 1982. the holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
In the will, decedent named as devisees, the following: requirement of the law that the holographic will be
petitioners Roberto and Thelma Ajero, private respondent entirely written, dated and signed in the
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, handwriting of the testatrix has been complied
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., with.
and their children.

xxx xxx xxx


On January 20, 1983, petitioners instituted Sp. Proc. No. Q-
37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound As to the question of the testamentary capacity of
and disposing mind, not acting under duress, fraud or undue the testratix, (private respondent) Clemente Sand
influence, and was in every respect capacitated to dispose of himself has testified in Court that the testatrix was
her estate by will. completely in her sound mind when he visited her
during her birthday celebration in 1981, at or
around which time the holographic will in question
Private respondent opposed the petition on the grounds that: was executed by the testatrix. To be of sound
neither the testament's body nor the signature therein was in mind, it is sufficient that the testatrix, at the time of
decedent's handwriting; it contained alterations and making the will, knew the value of the estate to be
corrections which were not duly signed by decedent; and, disposed of, the proper object of her bounty, and
the will was procured by petitioners through improper thecharacter of the testamentary act . . . The will
pressure and undue influence. The petition was likewise itself shows that the testatrix even had detailed
opposed by Dr. Jose Ajero. He contested the disposition in knowledge of the nature of her estate. She even
the will of a house and lot located in Cabadbaran, Agusan identified the lot number and square meters of the
Del Norte. He claimed that said property could not be lots she had conveyed by will. The objects of her
conveyed by decedent in its entirety, as she was not its sole bounty were likewise identified explicitly. And
owner. considering that she had even written a nursing
book which contained the law and jurisprudence
Notwithstanding the oppositions, the trial court admitted the on will and succession, there is more than
decedent's holographic will to probate. It found, inter alia: sufficient showing that she knows the character of
the testamentary act.
Considering then that the probate proceedings
herein must decide only the question of identity of In this wise, the question of identity of the will, its
the will, its due execution and the testamentary due execution and the testamentary capacity of
the testatrix has to be resolved in favor of the Section 9, Rule 76 of the Rules of Court provides that will
allowance of probate of the will submitted herein. shall be disallowed in any of the following cases:

Likewise, no evidence was presented to show (a) If not executed and attested as required by
sufficient reason for the disallowance of herein law;
holographic will. While it was alleged that the said
will was procured by undue and improper pressure
(b) If the testator was insane, or otherwise
and influence on the part of the beneficiary or of
mentally incapable to make a will, at the time of its
some other person, the evidence adduced have
execution;
not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the (c) If it was executed under duress, or the
testatrix was still alert at the time of the execution influence of fear, or threats;
of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also
established that she is a very intelligent person (d) If it was procured by undue and improper
pressure and influence, on the part of the
and has a mind of her own. Her independence of
character and to some extent, her sense of beneficiary, or of some other person for his
superiority, which has been testified to in Court, all benefit;
show the unlikelihood of her being unduly
influenced or improperly pressured to make the (e) If the signature of the testator was procured by
aforesaid will. It must be noted that the undue fraud or trick, and he did not intend that the
influence or improper pressure in question herein instrument should be his will at the time of fixing
only refer to the making of a will and not as to the his signature thereto.
specific testamentary provisions therein which is
the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find In the same vein, Article 839 of the New Civil Code reads:
convincing reason for the disallowance of the will
herein. Art. 839: The will shall be disallowed in any of the
following cases;
Considering then that it is a well-established
doctrine in the law on succession that in case of (1) If the formalities required by law
doubt, testate succession should be preferred over have not been complied with;
intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of the (2) If the testator was insane, or
late Annie Sand, the aforesaid will submitted otherwise mentally incapable of making
herein must be admitted to probate. 3 (Citations a will, at the time of its execution;
omitted.)
(3) If it was executed through force or
On appeal, said Decision was reversed, and the petition for under duress, or the influence of fear, or
probate of decedent's will was dismissed. The Court of threats;
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did (4) If it was procured by undue and
not comply with Articles 813 and 814 of the New Civil Code, improper pressure and influence, on the
which read, as follows: part of the beneficiary or of some other
person;
Art. 813: When a number of dispositions
appearing in a holographic will are signed without (5) If the signature of the testator was
being dated, and the last disposition has a procured by fraud;
signature and date, such date validates the
dispositions preceding it, whatever be the time of
prior dispositions. (6) If the testator acted by mistake or did
not intend that the instrument he signed
should be his will at the time of affixing
Art. 814: In case of insertion, cancellation, erasure his signature thereto.
or alteration in a holographic will, the testator must
authenticate the same by his full signature.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic will
It alluded to certain dispositions in the will which were either to probate, the only issues to be resolved are: (1) whether
unsigned and undated, or signed but not dated. It also found the instrument submitted is, indeed, the decedent's last will
that the erasures, alterations and cancellations made and testament; (2) whether said will was executed in
thereon had not been authenticated by decedent. accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary
Thus, this appeal which is impressed with merit. capacity at the time the will was executed; and, (4) whether
the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the respects the particular words erased, corrected or
holographic will of Anne Sand was not executed in interlined. Manresa gave an identical commentary
accordance with the formalities prescribed by law. It held when he said "la omission de la salvedad no anula
that Articles 813 and 814 of the New Civil Code, ante, were el testamento, segun la regla de jurisprudencia
not complied with, hence, it disallowed the probate of said establecida en la sentencia de 4 de Abril de
will. This is erroneous. 1985." 8 (Citations omitted.)

We reiterate what we held in Abangan vs. Abangan, 40 Phil. Thus, unless the unauthenticated alterations, cancellations
476, 479 (1919), that: or insertions were made on the date of the holographic will
or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only
The object of the solemnities surrounding the
result in disallowance of such changes.
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 It is also proper to note that the requirements of
authenticity. Therefore, the laws on this subject authentication of changes and signing and dating of
should be interpreted in such a way as to attain dispositions appear in provisions (Articles 813 and 814)
these primordial ends. But, on the other hand, also separate from that which provides for the necessary
one must not lose sight of the fact that it is not the conditions for the validity of the holographic will (Article 810).
object of the law to restrain and curtail the The distinction can be traced to Articles 678 and 688 of the
exercise of the right to make a will. So when an Spanish Civil Code, from which the present provisions
interpretation already given assures such ends, covering holographic wills are taken. They read as follows:
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
Art. 678: A will is called holographic when the
unnecessary, useless and frustrative of the
testator writes it himself in the form and with the
testator's last will, must be disregarded.
requisites required in Article 688.

For purposes of probating non-holographic wills, these


Art. 688: Holographic wills may be executed only
formal solemnities include the subscription, attestation, and
by persons of full age.
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
In the case of holographic wills, on the other hand, what
execution, written in its entirety by the testator and
assures authenticity is the requirement that they be totally
signed by him, and must contain a statement of
autographic or handwritten by the testator himself, 7 as
the year, month and day of its execution.
provided under Article 810 of the New Civil Code, thus:

If it should contain any erased, corrected, or


A person may execute a holographic will
interlined words, the testator must identify them
which must be entirely written, dated,
over his signature.
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 Foreigners may execute holographic wills in their
Philippines, and need not be witnessed. own language.
(Emphasis supplied.)
This separation and distinction adds support to the
Failure to strictly observe other formalities will not interpretation that only the requirements of Article 810 of the
result in the disallowance of a holographic will that New Civil Code — and not those found in Articles 813 and
is unquestionably handwritten by the testator. 814 of the same Code — are essential to the probate of a
holographic will.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained The Court of Appeals further held that decedent Annie Sand
in the holographic will, but not its probate. If the testator fails could not validly dispose of the house and lot located in
to sign and date some of the dispositions, the result is that Cabadbaran, Agusan del Norte, in its entirety. This is correct
these dispositions cannot be effectuated. Such failure, and must be affirmed.
however, does not render the whole testament void.
As a general rule, courts in probate proceedings are limited
Likewise, a holographic will can still be admitted to probate, to pass only upon the extrinsic validity of the will sought to
notwithstanding non-compliance with the provisions of Article be probated. However, in exceptional instances, courts are
814. In the case of Kalaw vs. Relova 132 SCRA 237 not powerless to do what the situation constrains them to do,
242 (1984), this Court held: and pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late
Ordinarily, when a number of erasures,
father, John H. Sand (which led oppositor Dr. Jose Ajero to
corrections, and interlineations made by the
question her conveyance of the same in its entirety). Thus,
testator in a holographic Will have not been noted
as correctly held by respondent court, she cannot validly
under his signature, . . . the Will is not thereby
dispose of the whole property, which she shares with her
invalidated as a whole, but at most only as
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Center na nagkakahalaga ng di kukulangin sa
Decision of the Court of Appeals in CA-G.R. CV No. 22840, halagang P60,000.00 sa bayan ng Pulilan,
dated March 30, 1992, is REVERSED and SET ASIDE, Bulacan, na nakaukit ang aking pangalang
except with respect to the invalidity of the disposition of the Felicidad Esguerra-Alto. At kung ito ay may
entire house and lot in Cabadbaran, Agusan del Norte. The kakulangan man ay bahala na ang aking asawa
Decision of the Regional Trial Court of Quezon City, Branch ang magpuno upang matupad ang aking
94 in Sp. Proc. No. Q-37171, dated November 19, 1988, kagustuhan.
admitting to probate the holographic will of decedent Annie
Sand, is hereby REINSTATED, with the above qualification
as regards the Cabadbaran property. No costs. (Lagda) Felicidad E. Alto-Yap.

SO ORDERED.
Opposing the petition, her surviving husband Ildefonso Yap
Narvasa, C.J., Padilla, Regalado and Mendoza, asserted that the deceased had not left any will, nor
JJ., concur. executed any testament during her lifetime.

Republic of the Philippines After hearing the parties and considering their evidence, the
SUPREME COURT Hon. Ramon R. San Jose, Judge,1 refused to probate the
Manila alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.
EN BANC
The will itself was not presented. Petitioner tried to establish
its contents and due execution by the statements in open
G.R. No. L-12190 August 30, 1958 court of Felina Esguerra, Primitivo Reyes, Socorro Olarte
and Rosario Gan Jimenez, whose testimonies may be
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO- summarized as follows:
YAP deceased. FAUSTO E. GAN, petitioner-appellant,
vs. Sometime in 1950 after her last trip abroad, Felicidad
ILDEFONSO YAP, oppositor-appellee. Esguerra mentioned to her first cousin, Vicente Esguerra,
her desire to make a will. She confided however that it would
BENGZON, J.: be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter
On November 20, 1951, Felicidad Esguerra Alto Yap died of replied it could be done without any witness, provided the
heart failure in the University of Santo Tomas Hospital, document was entirely in her handwriting, signed and dated
leaving properties in Pulilan, Bulacan, and in the City of by her. Vicente Esguerra lost no time in transmitting the
Manila. information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street,
On March 17, 1952, Fausto E. Gan initiated them Manila, Felicidad wrote, signed and dated a holographic will
proceedings in the Manila court of first instance with a substantially of the tenor above transcribed, in the presence
petition for the probate of a holographic will allegedly of her niece, Felina Esguerra (daughter of Vicente), who was
executed by the deceased, substantially in these words: invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina
Nobyembre 5, 1951. Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a


cousin, and Rosario Gan Jimenez, a niece. To these she
Ako, si Felicidad E. Alto-Yap, may asawa, at showed the will, again in the presence of Felina Esguerra,
ganap na pag-iisip, ay nagsasalaysay na ang who read it for the third time.
aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang
sumusunod: When on November 19, 1951, Felicidad was confined at the
U.S.T. Hospital for her last illness, she entrusted the said
will, which was contained in a purse, to Felina Esguerra. But
Vicente Esguerra, Sr. ........................... 5 Bahagi a few hours later, Ildefonso Yap, her husband, asked Felina
Fausto E. Gan ................................ 2 Bahagi for the purse: and being afraid of him by reason of his well-
known violent temper, she delivered it to him. Thereafter, in
Rosario E. Gan ................................ 2 Bahagi the same day, Ildefonso Yap returned the purse to Felina,
Filomena Alto .................................. 1 Bahagi only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she
Beatriz Alto .................................... 1 Bahagi had taken the purse to the toilet, opened it and read the will
for the last time.2
At ang aking lahat ng ibang kayamanan sa
Maynila at iba panglugar ay aking ipinamamana From the oppositor's proof it appears that Felicidad Esguerra
sa aking asawang si Idelfonso D. Yap sa had been suffering from heart disease for several years
kondisyong siya'y magpapagawa ng isang Health before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; holographic will which must be entirely written, dated, and
that in May 1950 husband and wife journeyed to the United signed by the hand of the testator himself. It is subject to no
States wherein for several weeks she was treated for the other form and may be made in or out of the Philippines, and
disease; that thereafter she felt well and after visiting need not be witnessed."
interesting places, the couple returned to this country in
August 1950. However, her ailment recurred, she suffered
This is indeed a radical departure from the form and
several attacks, the most serious of which happened in the
solemnities provided for wills under Act 190, which for fifty
early morning of the first Monday of November 1951 (Nov.
years (from 1901 to 1950) required wills to be subscribed by
5). The whole household was surprised and alarmed, even
the testator and three credible witnesses in each andevery
the teachers of the Harvardian Colleges occupying the lower
page; such witnesses to attest to the number of sheets used
floors and of by the Yap spouses. Physician's help was
and to the fact that the testator signed in their presence and
hurriedly called, and Dr. Tanjuaquio arrived at about 8:00
that they signed in the presence of the testator and of each
a.m., found the patient hardly breathing, lying in bed, her
other.
head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient
stayed in bed, and did nothing the whole day, her husband The object of such requirements it has been said, is to close
and her personal attendant, Mrs. Bantique, constantly at her the door against bad faith and fraud, to prevent substitution
side. These two persons swore that Mrs. Felicidad Esguerra of wills, to guarantee their truth and authencity
Yap made no will, and could have made no will on that day. (Abangan vs. Abangan, 40 Phil., 476) and to avoid those
who have no right to succeed the testator would succeed
him and be benefited with the probate of same.
The trial judge refused to credit the petitioner's evidence for
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
several reasons, the most important of which were these: (a)
imperfections may be brushed aside when authenticity of the
if according to his evidence, the decedent wanted to keep
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz.
her will a secret, so that her husband would not know it, it is
1st Supp. No. 3 p. 194.)
strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in
the absence of a showing that Felina was a confidant of the Authenticity and due execution is the dominant requirements
decedent it is hard to believe that the latter would have to be fulfilled when such will is submitted to the courts for
allowed the former to see and read the will several times; (c) allowance. For that purpose the testimony of one of the
it is improbable that the decedent would have permitted subscribing witnesses would be sufficient if there is no
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to opposition (Sec. 5, Rule 77). If there is, the three must
read her will, when she precisely wanted its contents to testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
remain a secret during her lifetime; (d) it is also improbable Tolentino vs. Francisco, 57 Phil., 742). From the testimony of
that her purpose being to conceal the will from her husband such witnesses (and of other additional witnesses) the court
she would carry it around, even to the hospital, in her purse may form its opinion as to the genuineness and authenticity
which could for one reason or another be opened by her of the testament, and the circumstances its due execution.
husband; (e) if it is true that the husband demanded the
purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without Now, in the matter of holographic wills, no such guaranties of
truth and veracity are demanded, since as stated, they need
destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear no witnesses; provided however, that they are "entirely
he will destroy it. written, dated, and signed by the hand of the testator
himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its
In the face of these improbabilities, the trial judge had to own safeguard, since it could at any time, be demonstrated
accept the oppositor's evidence that Felicidad did not and to be — or not to be — in the hands of the testator himself.
could not have executed such holographic will. "In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly
In this appeal, the major portion of appellant's brief
declare that the will and the signature are in the handwriting
discussed the testimony of the oppositor and of his
of the testator. If the will is contested, at least three such
witnesses in a vigorous effort to discredit them. It appears
witnesses shall be required. In the absence of any such
that the same arguments, or most of them, were presented
witnesses, (familiar with decedent's handwriting) and if the
in the motion to reconsider; but they failed to induce the
court deem it necessary, expert testimony may be resorted
court a quo to change its mind. The oppositor's brief, on the
to."
other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our
opinion the case should be decided not on the weakness of The witnesses so presented do not need to have seen the
the opposition but on the strength of the evidence of the execution of the holographic will. They may be mistaken in
petitioner, who has the burden of proof. their opinion of the handwriting, or they may deliberately lie
in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the
The Spanish Civil Code permitted the execution of
testator's handwriting, or some expert witnesses, who after
holographic wills along with other forms. The Code of Civil
comparing the will with other writings or letters of the
Procedure (Act 190) approved August 7, 1901, adopted only
deceased, have come to the conclusion that such will has
one form, thereby repealing the other forms, including
not been written by the hand of the deceased. (Sec. 50, Rule
holographic wills.
123). And the court, in view of such contradictory testimony
may use its own visual sense, and decide in the face of the
The New Civil Code effective in 1950 revived holographic document, whether the will submitted to it has indeed been
wills in its arts. 810-814. "A person may execute a written by the testator.
Obviously, when the will itself is not submitted, these means others from knowing either its execution or its contents, the
of opposition, and of assessing the evidence are not above article 692 could not have the idea of simply
available. And then the only guaranty of authenticity3 — the permitting such relatives to state whether they know of the
testator's handwriting — has disappeared. will, but whetherin the face of the document itself they think
the testator wrote it. Obviously, this they can't do unless the
will itself is presented to the Court and to them.
Therefore, the question presents itself, may a holographic
will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the Undoubtedly, the intention of the law is to give the near
handwriting of the testator? How can the oppositor prove relatives the choice of either complying with the will if they
that such document was not in the testator's handwriting? think it authentic, or to oppose it, if they think it
His witnesses who know testator's handwriting have not spurious.5 Such purpose is frustrated when the document is
examined it. His experts can not testify, because there is no not presented for their examination. If it be argued that such
way to compare the alleged testament with other documents choice is not essential, because anyway the relatives may
admittedly, or proven to be, in the testator's hand. The oppose, the answer is that their opposition will be at a
oppositor will, therefore, be caught between the upper distinct disadvantage, and they have the right and privilegeto
millstone of his lack of knowledge of the will or the form comply with the will, if genuine, a right which they should not
thereof, and the nether millstone of his inability to prove its be denied by withholding inspection thereof from them.
falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document,
We find confirmation of these ideas--about exhibition of the
and having no interest to check the authenticity thereof have
document itself--in the decision of the Supreme Court of
taken no pains to examine and compare. Or they may be
Spain of June 5, 1925, which denied protocolization or
perjurers boldly testifying, in the knowledge that none could
probate to a document containing testamentary dispositions
convict them of perjury, because no one could prove that
in the handwriting of the deceased, but apparently
they have not "been shown" a document which they
mutilated, the signature and some words having been torn
believed was in the handwriting of the deceased. Of course,
from it. Even in the face of allegations and testimonial
the competency of such perjured witnesses to testify as to
evidence (which was controverted), ascribing the mutilation
the handwriting could be tested by exhibiting to them other
to the opponents of the will. The aforesaid tribunal declared
writings sufficiently similar to those written by the deceased;
that, in accordance with the provision of the Civil Code
but what witness or lawyer would not foresee such a move
(Spanish) the will itself, whole and unmutilated, must be
and prepare for it? His knowledge of the handwriting
presented; otherwise, it shall produce no effect.
established, the witness (or witnesses) could simply stick to
his statement: he has seen and read a document which he
believed was in the deceased's handwriting. And the court Considerando que sentado lo anterior, y
and the oppositor would practically be at the mercy of such estableciendose en el parrafo segundo del articulo
witness (or witnesses) not only as to the execution, but also 688 del Codigo civil, que para que sea valido el
as to the contents of the will. Does the law permit such a testamento olografo debera estar escrito todo el y
situation? firmado por testador, con expression del año, mes
y dia en que se otorque, resulta evidente que para
la validez y eficacia de esos testamentos, no
The Rules of Court, (Rule 77) approved in 1940 allow proof
basta la demostracion mas o menos cumplida de
(and probate) of a lost or destroyed will by secondary —
que cuando se otorgaron se Ilenaron todos esos
evidence the testimony of witnesses, in lieu of the original
requisitos, sino que de la expresada redaccion el
document. Yet such Rules could not have contemplated
precepto legal, y por el tiempo en que el verbo se
holographic wills which could not then be validly made here.
emplea, se desprende la necesidad de que el
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
documento se encuentre en dichas condiciones
en el momento de ser presentado a la Autoridad
Could Rule 77 be extended, by analogy, to holographic competente, para au adveracion y protocolizacion;
wills? y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y
aficacia, por no estarfirmado por el testador,
Spanish commentators agree that one of the greatest
cualquiera que sea la causa de la falta de firma, y
objections to the holographic will is that it may be lost or
sin perjuicio de las acciones que puedan ejercitar
stolen4 — an implied admission that such loss or theft
los perjudicados, bien para pedir indemnizacion
renders it useless..
por el perjuicio a la persona culpable, si la
hubiere, o su castigo en via criminal si procediere,
This must be so, because the Civil Code requires it to be por constituir dicha omision un defecto
protocoled and presented to the judge, (Art. 689) who shall insubsanable . . . .
subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable
This holding aligns with the ideas on holographic wills in the
doubt that the will was written by the testator (Art. 691). And
Fuero Juzgo, admittedly the basis of the Spanish Civil Code
if the judge considers that the identity of the will has been
provisions on the matter.6
proven he shall order that it be filed (Art. 693). All these,
imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving PRECEDENTES LEGALES--Fuero Juzgo, libro
spouse and the legitimate ascendants and descendants be segundo, titulo V, ley 15--E depues que los
summoned so that they may make "any statement they may herederos e sus fijos ovieren esta manda, fasta ...
desire to submit with respect to the authenticity of the will." annos muestrenla al obispo de la tierra, o al juez
As it is universally admitted that the holographic will is fasta VI meses y el obispo o el juez tomen otros
usually done by the testator and by himself alone, to prevent tales tres escritos, que fuesen fechos por su mano
daquel que fizo la manda; e por aquellos error, because the document itself is not at hand. And
escriptos, si semjara la letra de la manda, sea considering that the holographic will may consist of two or
confirmada la manda. E depues que todo esto three pages, and only one of them need be signed, the
fuere connoscido, el obispo o el juez, o otras substitution of the unsigned pages, which may be the most
testimonios confirmen el escripto de la manda otra important ones, may go undetected.
vez, y en esta manera vala la manda. (Art. 689,
Scaevola--Codigo Civil.)
If testimonial evidence of holographic wills be permitted, one
more objectionable feature — feasibility of forgery — would
(According to the Fuero above, the will itself must be be added to the several objections to this kind of wills listed
compared with specimens of the testators handwriting.) by Castan, Sanchez Roman and Valverde and other well-
known Spanish Commentators and teachers of Civil Law. 10
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic One more fundamental difference: in the case of a lost will,
will, unless they are shown his handwriting and signature.7 the three subscribing witnesses would be testifying to a
fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost
Parenthetically, it may be added that even the French Civil
holographic will, the witnesses would testify as to their
Law considers the loss of the holographic will to be fatal.
opinion of the handwriting which they allegedly saw, an
(Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
opinion which can not be tested in court, nor directly
Cruz, 1946, Tomo V, page 555).
contradicted by the oppositors, because the handwriting
itself is not at hand.
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
Turning now to the evidence presented by the petitioner, we
destroyed holographic will may not be proved by the bare
find ourselves sharing the trial judge's disbelief. In addition to
testimony of witnesses who have seen and/or read such
the dubious circumstances described in the appealed
will.8
decision, we find it hard to believe that the deceased should
show her will precisely to relatives who had received nothing
Under the provisions of Art. 838 of the New Civil Code, we from it: Socorro Olarte and Primitivo Reyes. These could
are empowered to adopt this opinion as a Rule of Court for pester her into amending her will to give them a share, or
the allowance of such holographic wills. We hesitate, threaten to reveal its execution to her husband Ildefonso
however, to make this Rule decisive of this controversy, Yap. And this leads to another point: if she wanted so much
simultaneously with its promulgation. Anyway, decision of to conceal the will from her husband, why did she not entrust
the appeal may rest on the sufficiency, rather the it to her beneficiaries? Opportunity to do so was not lacking:
insufficiency, of the evidence presented by petitioner Fausto for instance, her husband's trip to Davao, a few days after
E. Gan. the alleged execution of the will.

At this point, before proceeding further, it might be In fine, even if oral testimony were admissible to establish
convenient to explain why, unlike holographic wills, ordinary and probate a lost holographic will, we think the evidence
wills may be proved by testimonial evidence when lost or submitted by herein petitioner is so tainted with
destroyed. The difference lies in the nature of the wills. In the improbabilities and inconsistencies that it fails to measure up
first, the only guarantee of authenticity is the handwriting to that "clear and distinct" proof required by Rule 77, sec.
itself; in the second, the testimony of the subscribing or 6.11
instrumental witnesses (and of the notary, now). The loss of
the holographic will entails the loss of the only medium of
Wherefore, the rejection of the alleged will must be
proof; if the ordinary will is lost, the subscribing witnesses
sustained.
are available to authenticate.

Judgment affirmed, with costs against petitioner.


In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then
their lies could be checked and exposed, their whereabouts Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista
and acts on the particular day, the likelihood that they would Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix,
be called by the testator, their intimacy with the testator, etc. JJ., concur.
And if they were intimates or trusted friends of the testator
they are not likely to end themselves to any fraudulent
Republic of the Philippines
scheme to distort his wishes. Last but not least, they can not
SUPREME COURT
receive anything on account of the will.
Manila

Whereas in the case of holographic wills, if oral testimony


FIRST DIVISION
were admissible9 only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive G.R. No. L-58509 December 7, 1982
to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for
IN THE MATTER OF THE PETITION TO APPROVE THE
it, and in court they would in all good faith affirm its
WILL OF RICARDO B. BONILLA deceased, MARCELA
genuineness and authenticity. The will having been lost —
RODELAS, petitioner-appellant,
the forger may have purposely destroyed it in an "accident"
— the oppositors have no way to expose the trick and the vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. The appellees then filed a motion for
LORENZO SUMULONG, intervenor. reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the
RELOVA, J.:
appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23,
This case was certified to this Tribunal by the Court of 1979 and dismissed the petition for the probate of
Appeals for final determination pursuant to Section 3, Rule the will of Ricardo B. Bonilla. The court said:
50 of the Rules of Court.
... It is our considered opinion that once the
As found by the Court of Appeals: original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
... On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the In the case of Gam vs. Yap, 104 Phil. 509, 522,
probate of the holographic will of Ricardo B. the Supreme Court held that 'in the matter of
Bonilla and the issuance of letters testamentary in holographic wills the law, it is reasonable to
her favor. The petition, docketed as Sp. Proc. No. suppose, regards the document itself as the
8432, was opposed by the appellees Amparo material proof of authenticity of said wills.
Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following
MOREOVER, this Court notes that the alleged
grounds:
holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13,
(1) Appellant was estopped from claiming that the 1976. In view of the lapse of more than 14 years
deceased left a will by failing to produce the will from the time of the execution of the will to the
within twenty days of the death of the testator as death of the decedent, the fact that the original of
required by Rule 75, section 2 of the Rules of the will could not be located shows to our mind
Court; that the decedent had discarded before his death
his allegedly missing Holographic Will.
(2) The alleged copy of the alleged holographic
will did not contain a disposition of property after Appellant's motion for reconsideration was denied. Hence,
death and was not intended to take effect after an appeal to the Court of Appeals in which it is contended
death, and therefore it was not a will that the dismissal of appellant's petition is contrary to law
and well-settled jurisprudence.
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise On July 7, 1980, appellees moved to forward the case to this
it would produce no effect, as held in Gam v. Yap, Court on the ground that the appeal does not involve
104 Phil. 509; and question of fact and alleged that the trial court committed the
following assigned errors:
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and attested I. THE LOWER COURT ERRED IN HOLDING
as required by law. THAT A LOST HOLOGRAPHIC WILL MAY NOT
BE PROVED BY A COPY THEREOF;
The appellees likewise moved for the
consolidation of the case with another case Sp. II. THE LOWER COURT ERRED IN HOLDING
Proc. No, 8275). Their motion was granted by the THAT THE DECEDENT HAS DISCARDED
court in an order dated April 4, 1977. BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
On November 13, 1978, following the
consolidation of the cases, the appellees moved III. THE LOWER COURT ERRED IN DISMISSING
again to dismiss the petition for the probate of the APPELLANT'S WILL.
will. They argued that:
The only question here is whether a holographic will which
(1) The alleged holographic was not a last will but was lost or cannot be found can be proved by means of a
merely an instruction as to the management and photostatic copy. Pursuant to Article 811 of the Civil Code,
improvement of the schools and colleges founded probate of holographic wills is the allowance of the will by the
by decedent Ricardo B. Bonilla; and court after its due execution has been proved. The probate
may be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is available,
(2) Lost or destroyed holographic wills cannot be experts may be resorted to. If contested, at least three
proved by secondary evidence unlike ordinary Identifying witnesses are required. However, if the
wills.
holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the
Upon opposition of the appellant, the motion to best and only evidence is the handwriting of the testator in
dismiss was denied by the court in its order of said will. It is necessary that there be a comparison between
February 23, 1979. sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be
made with the standard writings of the testator. In the case
of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof
of authenticity." But, in Footnote 8 of said decision, it says
that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested
before the probate court," Evidently, the photostatic or xerox
copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of
the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3,


1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing
her petition to approve the will of the late Ricardo B. Bonilla,
is hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez


and Gutierrez, Jr., JJ., concur.