ARTICLE 779 the Court of First Instance of Rizal a
petition for the settlement of the
ANGELA RODRIGUEZ, MARIA RODRIGUEZ,
ET AL., petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the
Court of First Instance of Bulacan, Branch
III,
ANATOLIA PANGILINAN and ADELAIDA
JACALAN, respondents.
Lorenzo Somulong for petitioners.
Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and
Antonio, surnamed Rodriguez, petition this
Court for a writ of certiorariand prohibition to
the Court of First Instance of Bulacan, for its
refusal to grant their motion to dismiss its
Special Proceeding No. 1331, which said Court
is alleged to have taken cognizance of without
jurisdiction.
The facts and issues are succinctly narrated in
the order of the respondent court, dated June
13, 1963 (Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed
by Angela, Maria, Abelardo and Antonio
Rodriguez, through counsel, that this
Court "has no jurisdiction to try the
above-entitled case in view of the
pendency of another action for the
settlement of the estate of the deceased
Rev. Fr. Celestino Rodriguez in the
Court of First Instance of Rizal, namely,
Sp. Proceedings No. 3907 entitled 'In
the matter of the Intestate Estate of the
deceased Rev. Fr. Celestino Rodriguez
which was filed ahead of the instant
case".
The records show that Fr. Celestino
Rodriguez died on February 12, 1963 in
the City of Manila; that on March 4,
1963, Apolonia Pangilinan and Adelaida
Jacalan delivered to the Clerk of Court
of Bulacan a purported last will and
testament of Fr. Rodriguez; that on
March 8, 1963, Maria Rodriguez and
Angela Rodriguez, through counsel filed
a petition for leave of court to allow them
to examine the alleged will; that on
March 11, 1963 before the Court could
act on the petition, the same was
withdrawn; that on March 12, 1963,
aforementioned petitioners filed before
intestate estate of Fr. Rodriguez
alleging, among other things, that Fr.
Rodriguez was a resident of Parañaque,
Rizal, and died without leaving a will and
praying that Maria Rodriguez be
appointed as Special Administratrix of
the estate; and that on March 12, 1963
Apolonia Pangilinan and Adelaida
Jacalan filed a petition in this Court for
the probation of the will delivered by
them on March 4, 1963. It was
stipulated by the parties that Fr.
Rodriguez was born in Parañaque,
Rizal; that he was Parish priest of the
Catholic Church of Hagonoy, Bulacan,
from the year 1930 up to the time of his
death in 1963; that he was buried in
Parañaque, and that he left real
properties in Rizal, Cavite, Quezon City
and Bulacan.
The movants contend that since the
intestate proceedings in the Court of
First Instance of Rizal was filed at 8:00
A.M. on March 12, 1963 while the
petition for probate was filed in the Court
of First Instance of Bulacan at 11:00
A.M. on the same date, the latter Court
has no jurisdiction to entertain the
petition for probate, citing as authority in
support thereof the case of Ongsingco
Vda. de Borja vs. Tan and De Borja,
G.R. No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan,
on the other hand, take the stand that
the Court of First Instance of Bulacan
acquired jurisdiction over the case upon
delivery by them of the will to the Clerk
of Court on March 4, 1963, and that the
case in this Court therefore has
precedence over the case filed in Rizal
on March 12, 1963.
The Court of First Instance, as previously
stated denied the motion to dismiss on the
ground that a difference of a few hours did not
entitle one proceeding to preference over the
other; that, as early as March 7, movants were
aware of the existence of the purported will of
Father Rodriguez, deposited in the Court of
Bulacan, since they filed a petition to examine
the same, and that movants clearly filed the
intestate proceedings in Rizal "for no other
purpose than to prevent this Court (of Bulacan)
from exercising jurisdiction over the probate
proceedings". Reconsideration having been
denied, movants, now petitioners, came to this
1
Court, relying principally on Rule 73, section 1
Page
of the Rules of Court, and invoking our ruling
in Ongsingco vs. Tan and De Borja, L-7792,
July 27, 1955.
SECTION 1. Where estate of deceased
persons settled. — If the decedent is an
inhabitant of the Philippines at the time
of his death, whether a citizen or an
alien, his will shall be proved, or letters
of administration granted, and his estate
settled, in the Court of First Instance in
the province in which he resides at the
time of his death, and if he is an
inhabitant of a foreign country, the Court
of First Instance of any province which
he had estate. The court first taking
cognizance of the settlement of the
estate of a decedent, shall exercise
jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a
court, as far as it depends on the place
of residence of the decedent, or of the
location of his estate, shall not be
contested in a suit or proceeding, except
in an appeal from that court, in the
original case, or when the want of
jurisdiction appears on the record.
We find this recourse to be untenable. The
jurisdiction of the Court of First Instance of
Bulacan became vested upon the delivery
thereto of the will of the late Father Rodriguez
on March 4, 1963, even if no petition for its
allowance was filed until later, because upon
the will being deposited the court could, motu
proprio, have taken steps to fix the time and
place for proving the will, and issued the
corresponding notices conformably to what is
prescribed by section 3, Rule 76, of the
Revised Rules of Court (Section 3, Rule 77, of
the old Rules):
SEC. 3. Court to appoint time for
proving will. Notice thereof to be
published. — When a will is delivered to,
or a petition for the allowance of a will is
filed in, the Court having jurisdiction,
such Court shall fix a time and place for
proving the will when all concerned may
appear to contest the allowance thereof,
and shall cause notice of such time and
place to be published three (3) weeks
successively, previous to the time
appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be
made where the petition for probate has
been filed by the testator himself.
The use of the disjunctive in the words "when a
will is delivered to OR a petition for the
allowance of a will is filed" plainly indicates that
the court may act upon the mere deposit
therein of a decedent's testament, even if no
petition for its allowance is as yet filed. Where
the petition for probate is made after the
deposit of the will, the petition is deemed to
relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez
was submitted and delivered to the Court of
Bulacan on March 4, while petitioners initiated
intestate proceedings in the Court of First
Instance of Rizal only on March 12, eight days
later, the precedence and exclusive jurisdiction
of the Bulacan court is
incontestable.1äwphï1.ñët
But, petitioners object, section 3 of revised
Rule 76 (old Rule 77) speaks of a will being
delivered to "the Court having jurisdiction," and
in the case at bar the Bulacan court did not
have it because the decedent was domiciled in
Rizal province. We can not disregard Fr.
Rodriguez's 33 years of residence as parish
priest in Hagonoy, Bulacan (1930-1963); but
even if we do so, and consider that he retained
throughout some animus revertendi to the
place of his birth in Parañaque, Rizal, that
detail would not imply that the Bulacan court
lacked jurisdiction. As ruled in previous
decisions, the power to settle decedents'
estates is conferred by law upon all courts of
first instance, and the domicile of the testator
only affects the venue but not the jurisdiction of
the Court (In re Kaw Singco, 74 Phil. 239;
Reyes vs. Diaz, 73 Phil. 484; Bernabe vs.
Vergara, 73 Phil. 676). Neither party denies
that the late Fr. Rodriguez is deceased, or that
he left personal property in Hagonoy, province
of Bulacan (t.s.n. p. 46, hearing of June 11,
1963, Annex "H", Petition, Rec., p. 48). That is
sufficient in the case before us.
In the Kaw Singco case (ante) this Court ruled
that:
"... If we consider such question of
residence as one affecting the
jurisdiction of the trial court over the
subject-matter, the effect shall be that
the whole proceedings including all
decisions on the different incidents
which have arisen in court will have to
be annulled and the same case will
have to be commenced anew before
another court of the same rank in
another province. That this is of
mischievous effect in the prompt
administration of justice is too obvious to
2
require comment. (Cf. Tanunchuan vs.
Page
 Dy Buncio & Co., G.R. No. 48206,
December 31, 1942). Furthermore,
section 600 of Act No. 190, providing
that the estate of a deceased person
shall be settled in the province where he
had last resided, could not have been
intended as defining the jurisdiction of
the probate court over the subject
matter, because such legal provision is
contained in a law of procedure dealing
merely with procedural matters, and, as
we have said time and again, procedure
is one thing and jurisdiction over the
subject matter is another. (Attorney
General vs. Manila Railroad Company,
20 Phil. 523.) The law of jurisdiction —
Act No. 136, Section 56, No. 5 —
confers upon Courts of First Instance
jurisdiction over all probate cases
independently of the place of residence
of the deceased.1 Since, however, there
are many Courts of First Instance in the
Philippines, the Law of Procedure, Act
No. 190, section 600, fixes the venue or
the place where each case shall be
brought. Thus, the place of residence of
the deceased is not an element of
jurisdiction over the subject matter but
merely of venue. And it is upon this
ground that in the new Rules of Court
the province where the estate of a
deceased person shall be settled is
properly called "venue" (Rule 75, section
1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in
the Bulacan Court of First Instance ahead of
any other, that court is entitled to assume
jurisdiction to the exclusion of all other courts,
even if it were a case of wrong venue by
express provisions of Rule 73 (old Rule 75) of
the Rules of Court, since the same enjoins
that:
The Court first taking cognizance of the
settlement of the estate of a decedent
shall exercise jurisdiction to the
exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more
courts have been asked to take cognizance of
the settlement of the estate. Of them only one
could be of proper venue, yet the rule grants
precedence to that Court whose jurisdiction is
first invoked, without taking venue into account.
There are two other reasons that militate
against the success of petitioners. One is that
their commencing intestate proceedings in
Rizal, after they learned of the delivery of the
decedent's will to the Court of Bulacan, was in
bad faith, patently done with a view to divesting
the latter court of the precedence awarded it by
the Rules. Certainly the order of priority
established in Rule 73 (old Rule 75) was not
designed to convert the settlement of
decedent's estates into a race between
applicants, with the administration of the
properties as the price for the fleetest.
The other reason is that, in our system of civil
law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only
takes place in the absence of a valid operative
will. Says Article 960 of the Civil Code of the
Philippines:
ART. 960. Legal or intestate succession
takes place:
(1) If a person dies without a will, or with
a void will, or one which has
subsequently lost its validity;
(2) When the will does not institute an
heir to, or dispose of all the property
belonging to the testator. In such case,
legal succession shall take place only
with respect to the property in which the
testator has not disposed;
(3) If the suspensive condition attached
to the institution of heir does not happen
or is not fulfilled, or if the heir dies
before the testator, or repudiates the
inheritance, there being no substitution,
and no right of accretion takes place;
(4) When the heir instituted is incapable
of succeeding, except in cases provided
in this Code.
Therefore, as ruled in Castro, et al. vs.
Martinez, 10 Phil. 307, "only after final decision
as to the nullity of testate succession could an
intestate succession be instituted in the form of
pre-established action". The institution of
intestacy proceedings in Rizal may not thus
proceed while the probate of the purported will
of Father Rodriguez is pending.
We rule that the Bulacan Court of First
Instance was entitled to priority in the
settlement of the estate in question, and that in
refusing to dismiss the probate. proceedings,
said court did not commit any abuse of
discretion. It is the proceedings in the Rizal
Court that should be discontinued.
Wherefore, the writ of certiorari applied for is
denied. Costs against petitioners Rodriguez.
3
Page
Page4
 ARTICLES 779, 780, 788, AND 792
In the Matter of the Petition to Approve the
Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the
Court of First Instance of Davao, Branch VI;
AVELINA B. ANTONIO and DELIA B.
LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from
the order of the Court of First Instance of
Davao dated February 28, 1974, declaring
illegal and void the will of his mother,
Leodegaria Julian, converting the testate
proceeding into an intestate proceeding and
ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808).
The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria,
Ilocos Sur, died on February 12, 1973 in Davao
City at the age of sixty-seven. She was
survived by her husband, Felix Balanay, Sr.,
and by their six legitimate children named Felix
Balanay, Jr., Avelina B. Antonio, Beatriz B.
Solamo, Carolina B. Manguiob, Delia B.
Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a
petition dated February 27, 1973 for the
probate of his mother's notarial will dated
September 5, 1970 which is written in English.
In that will Leodegaria Julian declared (a) that
she was the owner of the "southern half of nine
conjugal lots (par. II); (b) that she was the
absolute owner of two parcels of land which
she inherited from her father (par. III), and (c)
that it was her desire that her properties should
not be divided among her heirs during her
husband's lifetime and that their legitimes
should be satisfied out of the fruits of her
properties (Par. IV).
Then, in paragraph V of the will she stated that
after her husband's death (he was eighty-two
years old in 1973) her paraphernal lands and
all the conjugal lands (which she described as
"my properties") should be divided and
distributed in the manner set forth in that part
of her will. She devised and partitioned the
conjugal lands as if they were all owned by her.
She disposed of in the will her husband's one
half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio
opposed the probate of the will on the grounds
of lack of testamentary capacity, undue
influence, preterition of the husband and
alleged improper partition of the conjugal
estate. The oppositors claimed that Felix
Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition,
attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew
his opposition to the probate of the will and
affirmed that he was interested in its probate.
On the same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic) of
Division and Renunciation of Hereditary
Rights" wherein he manifested that out of
respect for his wife's will he "waived and
renounced' his hereditary rights in her estate in
favor of their six children. In that same
instrument he confirmed the agreement, which
he and his wife had perfected before her death,
that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her
rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void.
The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing
the probate of the will. It gave effect to the
affidavit and conformity of Felix Balanay, Sr. In
an order dated August 28, 1973 it appointed its
branch clerk of court as special administrator of
the decedent's estate.
Mrs. Antonio moved for the reconsideration of
the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed
that she was the owner of the southern half of
the conjugal lots and (b) that she could not
partition the conjugal estate by allocating
portions of the nine lots to her children. Felix
Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion.
The lower court denied it in its order of October
15, 1973.
In the meanwhile, another lawyer appeared in
the case. David O. Montaña, Sr., claiming to be
the lawyer of petitioner Felix Balanay, Jr. (his
counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of
court to withdraw probate of alleged will of
5
Leodegaria Julian and requesting authority to
Page
proceed by intestate estate proceeding." In that
motion Montaña claimed to be the lawyer not
only of the petitioner but also of Felix Balanay,
Sr., Beatriz B. Solamo, Carolina B. Manguiob
and Emilia B. Pabaonon.
Montaña in his motion assailed the provision of
the will which partitioned the conjugal assets or
allegedly effected a compromise of future
legitimes. He prayed that the probate of the will
be withdrawn and that the proceeding be
converted into an intestate proceeding. In
another motion of the same date he asked that
the corresponding notice to creditors be
issued.
Avelina B. Antonio and Delia B. Lanaban,
through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their
conformity with the motion for the issuance of a
notice to creditors. They prayed that the will be
declared void for being contrary to law and that
an intestacy be declared.
The lower court, acting on the motions of Atty.
Montaña, assumed that the issuance of a
notice to creditors was in order since the
parties had agreed on that point. It adopted the
view of Attys. Montaña and Guyo that the will
was void. So, in its order of February 28, 1974
it dismissed the petition for the probate,
converted the testate proceeding into an
intestate proceeding, ordered the issuance of a
notice to creditors and set the intestate
proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The
notice to creditors was issued on April 1, 1974
and published on May 2, 9 and 16 in the Davao
Star in spite of petitioner's motion of April 17,
1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel,
Roberto M. Sarenas, in a verified motion dated
April 15, 1974, asked for the reconsideration of
the lower court's order of February 28, 1974 on
the ground that Atty. Montaña had no authority
to withdraw the petition for the allowance of the
will. Attached to the motion was a copy of a
letter dated March 27, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr.,
Beatriz V. Solamo, Carolina B. Manguiob and
Emilia B. Pabaonon, wherein they terminated
Montaña's services and informed him that his
withdrawal of the petition for the probate of the
will was without their consent and was contrary
to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban
opposed the motion for reconsideration. The
lower court denied the motion in its order of
June 29, 1974. It clarified that it declared the
will void on the basis of its own independent
assessment of its provisions and not because
of Atty. Montaña's arguments.
The basic issue is whether the probate court
erred in passing upon the intrinsic validity of
the will, before ruling on its allowance or formal
validity, and in declaring it void.
We are of the opinion that in view of certain
unusual provisions of the will, which are of
dubious legality, and because of the motion to
withdraw the petition for probate (which the
lower court assumed to have been filed with
the petitioner's authorization), the trial court
acted correctly in passing upon the will's
intrinsic validity even before its formal validity
had been established. The probate of a will
might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity
of the will be passed upon, even before it is
probated, the court should meet the issue
(Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-
23135, December 26, 1967, 21 SCRA 1369;
Cacho vs. Udan, L-19996, April 30, 1965, 13
SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its
order of February 28, 1974 that the will was
void and in converting the testate proceeding
into an intestate proceeding notwithstanding
the fact that in its order of June 18, 1973 , it
gave effect to the surviving husband's
conformity to the will and to his renunciation of
his hereditary rights which presumably
included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several
dispositions contained in a will does not result
in the invalidity of the other dispositions, unless
it is to be presumed that the testator would not
have made such other dispositions if the first
invalid disposition had not been made" (Art.
792, Civil Code). "Where some of the
provisions of a will are valid and others invalid,
the valid parts will be upheld if they can be
separated from the invalid without defeating
the intention of the testator or interfering with
the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned
the "southern half of the conjugal lands is
contrary to law because, although she was a
coowner thereof, her share was inchoate
6
and proindiviso (Art. 143, Civil Code; Madrigal
Page
and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But That illegal declaration does not
nullify the entire will. It may be disregarded.
The provision of the will that the properties of
the testatrix should not be divided among her
heirs during her husband's lifetime but should
be kept intact and that the legitimes should be
paid in cash is contrary to article 1080 of the
Civil Code which reads:
ART. 1080. Should a person
make a partition of his estate by
an act inter vivos, or by will, such
partition shall be respected,
insofar as it does not prejudice
the legitime of the compulsory
heirs.
A parent who, in the interest of
his or her family, to keep any
agricultural, industrial, or
manufacturing enterprise intact,
may avail himself of the right
granted him in this article, by
ordering that the legitime of the
other children to whom the
property is not assigned be paid
in cash. (1056a)
The testatrix in her will made a partition of the
entire conjugal estate among her six children
(her husband had renounced his hereditary
rights and his one-half conjugal share). She did
not assign the whole estate to one or more
children as envisaged in article 1080. Hence,
she had no right to require that the legitimes be
paid in cash. On the other hand, her estate
may remain undivided only for a period of
twenty years. So, the provision that the estate
should not be divided during her husband's
lifetime would at most be effective only for
twenty years from the date of her death unless
there are compelling reasons for terminating
the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his
hereditary rights and his one-half share of the
conjugal partnership (Arts. 179[1] and 1041,
Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate
(Art. 1060[1] Civil Code), it should be subject to
the limitations prescribed in articles 750 and
752 of the Civil Code. A portion of the estate
should be adjudicated to the widower for his
support and maintenance. Or at least his
legitime should be respected.
Subject to the foregoing observations and the
rules on collation, the will is intrinsically valid
and the partition therein may be given effect if
it does not prejudice the creditors and impair
the legitimes. The distribution and partition
would become effective upon the death of Felix
Balanay, Sr. In the meantime, the net income
should be equitably divided among the children
and the surviving spouse.
It should be stressed that by reason of the
surviving husband's conformity to his wife's will
and his renunciation of his hereditary rights, his
one-half conjugal share became a part of his
deceased wife's estate. His conformity had the
effect of validating the partition made in
paragraph V of the will without prejudice, of
course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that
"property acquired after the making of a will
shall only pass thereby, as if the testator had it
at the time of making the will, should it
expressly appear by the will that such was his
intention". Under article 930 of the Civil Code
"the legacy or devise of a thing belonging to
another person is void, if the testator
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not
belonging to the testator when he made the
will, afterwards becomes his, by whatever title,
the disposition shall take effect."
In the instant case there is no doubt that the
testatrix and her husband intended to partition
the conjugal estate in the manner set forth in
paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal
estate (Art. 170, Civil Code) but since the
husband, after the dissolution of the conjugal
partnership, had assented to her testamentary
partition of the conjugal estate, such partition
has become valid, assuming that the will may
be probated.
The instant case is different from
the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her
parents. Her will was intrinsically void because
it preterited her compulsory heirs in the direct
line. Article 854 of the Civil Code provides that
"the preterition or omission of one, some, or all
of the compulsory heirs in the direct line,
whether living at the time of the execution of
the will or born after the death of the testator,
shall annul the institution of heir; but the
devises and legacies, shall be valid insofar as
they are not inofficious." Since the preterition of
the parents annulled the institution of the sister
of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2],
7
Civil Code).1äwphï1.ñët
Page
In the instant case, the preterited heir was the
surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not
proceeding with the probate of the will as
contemplated in its uncancelled order of June
18, 1973. Save in an extreme case where the
will on its face is intrinsically void, it is the
probate court's duty to pass first upon the
formal validity of the will. Generally, the
probate of the will is mandatory (Art. 838, Civil
Code; Guevara vs. Guevara, 74 Phil. 479 and
98 Phil. 249; Fernandez vs. Dimagiba, L-
23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the
very existence of a purported testament is in
itself prima facie proof that the supposed
testator has willed that his estate should be
distributed in the manner therein provided, and
it is incumbent upon the state that, if legally
tenable, such desire be given effect
independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla
vs. Narciso, L-27200, August 18, 1972, 46
SCRA 538, 565).
To give effect to the intention and wishes of the
testatrix is the first and principal law in the
matter of testaments (Dizon-Rivera vs. Dizon,
L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An
interpretation that will render a testamentary
disposition operative takes precedence over a
construction that will nullify a provision of the
will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in
favor of testacy especially where the will
evinces an intention on the part of the testator
to dispose of practically his whole estate. So
compelling is the principle that intestacy should
be avoided and that the wishes of the testator
should prevail that sometimes the language of
the will can be varied for the purpose of giving
it effect (Austria vs. Reyes, L-23079, February
27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed
desire of the testator must be followed and the
dispositions of the properties in his will should
be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of
the testator as expressed in his will because
any disposition therein is better than that which
the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be
noticed. It erred in issuing a notice to creditors
although no executor or regular administrator
has been appointed. The record reveals that it
appointed a special administrator. A notice to
creditors is not in order if only a special
administrator has been appointed. Section 1,
Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of
testamentary or of administration, the court
shall issue a notice requiring all persons having
money claims against the decedent to file them
in the office of the clerk of said court" clearly
contemplates the appointment of an executor
or regular administrator and not that of a
special administrator.
It is the executor or regular administrator who
is supposed to oppose the claims against the
estate and to pay such claims when duly
allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the
probate court's appointment of its branch clerk
of court as special administrator (p. 30, Rollo)
is not a salutary practice because it might
engender the suspicion that the probate Judge
and his clerk of court are in cahoots in milking
the decedent's estate. Should the branch clerk
of court commit any abuse or devastavit in the
course of his administration, the probate Judge
might find it difficult to hold him to a strict
accountability. A court employee should devote
his official time to his official duties and should
not have as a sideline the administration of a
decedent's estate.
WHEREFORE, the lower court's orders of
February 28, and June 29, 1974 are set aside
and its order of June 18, 1973, setting for
hearing the petition for probate, is affirmed.
The lower court is directed to conduct further
proceedings in Special Case No. 1808 in
consonance with this opinion. Costs, against
the private respondents.
SO ORDERED.
8
Page
 ARTICLE 783
JOHNNY S. RABADILLA,[1] petitioner,
vs. COURT OF APPEALS AND MARIA
MARLENA[2] COSCOLUELLA Y
BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the
decision of the Court of Appeals,[3] dated
December 23, 1993, in CA-G.R. No.
CV-35555, which set aside the decision
of Branch 52 of the Regional Trial Court
in Bacolod City, and ordered the
defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge
Rabadilla, to reconvey title over Lot No.
1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will
and Testament of testatrix Aleja Belleza,
Dr. Jorge Rabadilla, predecessor-in-
interest of the herein petitioner, Johnny
S. Rabadilla, was instituted as a devisee
of 511, 855 square meters of that parcel
of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil,
which was duly probated and admitted
in Special Proceedings No. 4046 before
the then Court of First Instance of
Negros Occidental, contained the
following provisions:
"FIRST
I give, leave and bequeath the
following property owned by me
to Dr. Jorge Rabadilla resident of
141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer
Certificate of Title No. RT-4002
(10942), which is registered in my
name according to the records of
the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla
die ahead of me, the
aforementioned property and the
rights which I shall set forth
hereinbelow, shall be inherited
and acknowledged by the
children and spouse of Jorge
Rabadilla.
xxx
FOURTH
(a)....It is also my command, in
this my addition (Codicil), that
should I die and Jorge Rabadilla
shall have already received the
ownership of the said Lot No.
1392 of the Bacolod Cadastre,
covered by Transfer Certificate of
Title No. RT-4002 (10942), and
also at the time that the lease of
Balbinito G. Guanzon of the said
lot shall expire, Jorge Rabadilla
shall have the obligation until he
dies, every year to give to Maria
Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export
sugar and Twenty Five (25)
piculs of Domestic sugar, until the
said Maria Marlina Coscolluela y
Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die,
his heir to whom he shall give Lot
No. 1392 of the Bacolod
Cadastre, covered by Transfer
Certificate of Title No. RT-4002
(10492), shall have the obligation
to still give yearly, the sugar as
specified in the Fourth paragraph
of his testament, to Maria Marlina
Coscolluela y Belleza on the
month of December of each year.
SIXTH
I command, in this my addition
(Codicil) that the Lot No. 1392, in
the event that the one to whom I
have left and bequeathed, and
his heir shall later sell, lease,
mortgage this said Lot, the buyer,
lessee, mortgagee, shall have
also the obligation to respect and
deliver yearly ONE HUNDRED
(100) piculs of sugar to Maria
Marlina Coscolluela y Belleza, on
each month of December,
SEVENTY FIVE (75) piculs of
Export and TWENTY FIVE (25)
piculs of Domestic, until Maria
9
Marlina shall die, lastly should the
Page
 buyer, lessee or the mortgagee of
this lot, not have respected my
command in this my addition
(Codicil), Maria Marlina
Coscolluela y Belleza, shall
immediately seize this Lot No.
1392 from my heir and the latter's
heirs, and shall turn it over to my
near desendants, (sic) and the
latter shall then have the
obligation to give the ONE
HUNDRED (100) piculs of sugar
until Maria Marlina shall die. I
further command in this my
addition (Codicil) that my heir and
his heirs of this Lot No. 1392, that
they will obey and follow that
should they decide to sell, lease,
mortgage, they cannot negotiate
with others than my near
descendants and my sister."[4]
Pursuant to the same Codicil, Lot No.
1392 was transferred to the deceased,
Dr. Jorge Rabadilla, and Transfer
Certificate of Title No. 44498 thereto
issued in his name.
Dr. Jorge Rabadilla died in 1983 and
was survived by his wife Rufina and
children Johnny (petitioner), Aurora,
Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena
Coscolluela y Belleza Villacarlos
brought a complaint, docketed as Civil
Case No. 5588, before Branch 52 of the
Regional Trial Court in Bacolod City,
against the above-mentioned heirs of
Dr. Jorge Rabadilla, to enforce the
provisions of subject Codicil. The
Complaint alleged that the defendant-
heirs violated the conditions of the
Codicil, in that:
1. Lot No. 1392 was mortgaged
to the Philippine National Bank
and the Republic Planters Bank
in disregard of the testatrix's
specific instruction to sell, lease,
or mortgage only to the near
descendants and sister of the
testatrix.
2. Defendant-heirs failed to
comply with their obligation to
deliver one hundred (100) piculs
of sugar (75 piculs export sugar
and 25 piculs domestic sugar) to
plaintiff Maria Marlena
Coscolluela y Belleza from sugar
crop years 1985 up to the filing of
the complaint as mandated by
the Codicil, despite repeated
demands for compliance.
3. The banks failed to comply
with the 6th paragraph of the
Codicil which provided that in
case of the sale, lease, or
mortgage of the property, the
buyer, lessee, or mortgagee shall
likewise have the obligation to
deliver 100 piculs of sugar per
crop year to herein private
respondent.
The plaintiff then prayed that judgment
be rendered ordering defendant-heirs to
reconvey/return-Lot No. 1392 to the
surviving heirs of the late Aleja Belleza,
the cancellation of TCT No. 44498 in the
name of the deceased, Dr. Jorge
Rabadilla, and the issuance of a new
certificate of title in the names of the
surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-
heirs were declared in default but on
March 28, 1990 the Order of Default
was lifted, with respect to defendant
Johnny S. Rabadilla, who filed his
Answer, accordingly.
During the pre-trial, the parties admitted
that:
On November 15, 1998, the
plaintiff (private respondent) and a
certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the
property and acting as attorney-in-fact of
defendant-heirs, arrived at an amicable
settlement and entered into a
Memorandum of Agreement on the
obligation to deliver one hundred piculs
of sugar, to the following effect:
"That for crop year 1988-89, the
annuity mentioned in Entry No.
49074 of TCT No. 44489 will be
delivered not later than January
of 1989, more specifically, to wit:
75 piculs of 'A'
sugar, and 25 piculs
of 'B' sugar, or then
existing in any of
our names, Mary
10
Rose Rabadilla y
Azurin or Alan
Page
 Azurin, during
December of each
sugar crop year, in
Azucar Sugar
Central; and, this is
considered
compliance of the
annuity as
mentioned, and in
the same manner
will compliance of
the annuity be in
the next succeeding
crop years.
That the annuity above stated for
crop year 1985-86, 1986-87, and
1987-88, will be complied in cash
equivalent of the number of piculs
as mentioned therein and which
is as herein agreed upon, taking
into consideration the composite
price of sugar during each sugar
crop year, which is in the total
amount of ONE HUNDRED FIVE
THOUSAND PESOS
(P105,000.00).
That the above-mentioned amount will
be paid or delivered on a staggered
cash installment, payable on or before
the end of December of every sugar
crop year, to wit:
For 1985-86, TWENTY SIX
THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or
before December of crop year 1988-89;
For 1986-87, TWENTY SIX
THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or
before December of crop year 1989-90;
For 1987-88, TWENTY SIX
THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or
before December of crop year 1990-91;
and
For 1988-89, TWENTY SIX
THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or
before December of crop year 1991-
92."[5]
However, there was no compliance with
the aforesaid Memorandum of
Agreement except for a partial delivery
of 50.80 piculs of sugar corresponding
to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial
Court came out with a decision,
dismissing the complaint and disposing
as follows:
"WHEREFORE, in the light of the
aforegoing findings, the Court
finds that the action is
prematurely filed as no cause of
action against the defendants has
as yet arose in favor of plaintiff.
While there maybe the non-
performance of the command as
mandated exaction from them
simply because they are the
children of Jorge Rabadilla, the
title holder/owner of the lot in
question, does not warrant the
filing of the present complaint.
The remedy at bar must fall.
Incidentally, being in the category
as creditor of the left estate, it is
opined that plaintiff may initiate
the intestate proceedings, if only
to establish the heirs of Jorge
Rabadilla and in order to give full
meaning and semblance to her
claim under the Codicil.
In the light of the aforegoing
findings, the Complaint being
prematurely filed is DISMISSED
without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division
of the Court of Appeals reversed the
decision of the trial court; ratiocinating
and ordering thus:
"Therefore, the evidence on
record having established
plaintiff-appellant's right to
receive 100 piculs of sugar
annually out of the produce of Lot
No. 1392; defendants-appellee's
obligation under Aleja Belleza's
codicil, as heirs of the modal heir,
Jorge Rabadilla, to deliver such
amount of sugar to plaintiff-
appellant; defendants-appellee's
admitted non-compliance with
said obligation since 1985; and,
the punitive consequences
enjoined by both the codicil and
the Civil Code, of seizure of Lot
No. 1392 and its reversion to the
estate of Aleja Belleza in case of
11
such non-compliance, this Court
deems it proper to order the
Page
 reconveyance of title over Lot No.
1392 from the estates of Jorge
Rabadilla to the estate of Aleja
Belleza. However, plaintiff-
appellant must institute separate
proceedings to re-open Aleja
Belleza's estate, secure the
appointment of an administrator,
and distribute Lot No. 1392 to
Aleja Belleza's legal heirs in order
to enforce her right, reserved to
her by the codicil, to receive her
legacy of 100 piculs of sugar per
year out of the produce of Lot No.
1392 until she dies.
Accordingly, the decision
appealed from is SET ASIDE and
another one entered ordering
defendants-appellees, as heirs of
Jorge Rabadilla, to reconvey title
over Lot No. 1392, together with
its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid
disposition by the Court of Appeals,
petitioner found his way to this
Court via the present petition,
contending that the Court of Appeals
erred in ordering the reversion of Lot
1392 to the estate of the testatrix Aleja
Belleza on the basis of paragraph 6 of
the Codicil, and in ruling that the
testamentary institution of Dr. Jorge
Rabadilla is a modal institution within
the purview of Article 882 of the New
Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of
Appeals erred in resolving the appeal in
accordance with Article 882 of the New
Civil Code on modal institutions and in
deviating from the sole issue raised
which is the absence or prematurity of
the cause of action. Petitioner maintains
that Article 882 does not find application
as there was no modal institution and
the testatrix intended a mere simple
substitution - i.e. the instituted heir, Dr.
Jorge Rabadilla, was to be substituted
by the testatrix's "near descendants"
should the obligation to deliver the fruits
to herein private respondent be not
complied with. And since the testatrix
died single and without issue, there can
be no valid substitution and such
testamentary provision cannot be given
any effect.
The petitioner theorizes further that
there can be no valid substitution for the
reason that the substituted heirs are not
definite, as the substituted heirs are
merely referred to as "near
descendants" without a definite identity
or reference as to who are the "near
descendants" and therefore, under
Articles 843[8] and 845[9] of the New Civil
Code, the substitution should be
deemed as not written.
The contentions of petitioner are
untenable. Contrary to his supposition
that the Court of Appeals deviated from
the issue posed before it, which was the
propriety of the dismissal of the
complaint on the ground of prematurity
of cause of action, there was no such
deviation. The Court of Appeals found
that the private respondent had a cause
of action against the petitioner. The
disquisition made on modal institution
was, precisely, to stress that the private
respondent had a legally demandable
right against the petitioner pursuant to
subject Codicil; on which issue the Court
of Appeals ruled in accordance with law.
It is a general rule under the law on
succession that successional rights are
transmitted from the moment of death of
the decedent[10] and compulsory heirs
are called to succeed by operation of
law. The legitimate children and
descendants, in relation to their
legitimate parents, and the widow or
widower, are compulsory heirs.[11] Thus,
the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir,
Dr. Jorge Rabadilla, succeeded the
latter by operation of law, without need
of further proceedings, and the
successional rights were transmitted to
them from the moment of death of the
decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code,
inheritance includes all the property,
rights and obligations of a person, not
extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had
by virtue of subject Codicil were
transmitted to his forced heirs, at the
time of his death. And since obligations
not extinguished by death also form part
12
of the estate of the decedent; corollarily,
the obligations imposed by the Codicil
Page
on the deceased Dr. Jorge Rabadilla,
were likewise transmitted to his
compulsory heirs upon his death.
In the said Codicil, testatrix Aleja
Belleza devised Lot No. 1392 to Dr.
Jorge Rabadilla, subject to the condition
that the usufruct thereof would be
delivered to the herein private
respondent every year. Upon the death
of Dr. Jorge Rabadilla, his compulsory
heirs succeeded to his rights and title
over the said property, and they also
assumed his (decedent's) obligation to
deliver the fruits of the lot involved to
herein private respondent. Such
obligation of the instituted heir
reciprocally corresponds to the right of
private respondent over the usufruct, the
fulfillment or performance of which is
now being demanded by the latter
through the institution of the case at bar.
Therefore, private respondent has a
cause of action against petitioner and
the trial court erred in dismissing the
complaint below.
Petitioner also theorizes that Article 882
of the New Civil Code on modal
institutions is not applicable because
what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to
be substituted by the testatrix's near
descendants should there be
noncompliance with the obligation to
deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the
testator of a person or persons to take
the place of the heir or heirs first
instituted. Under substitutions in
general, the testator may either (1)
provide for the designation of another
heir to whom the property shall pass in
case the original heir should die before
him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple
substitution,[12] or (2) leave his/her
property to one person with the express
charge that it be transmitted
subsequently to another or others, as in
a fideicommissary substitution.[13] The
Codicil sued upon contemplates neither
of the two.
In simple substitutions, the second heir
takes the inheritance in default of the
first heir by reason of incapacity,
predecease or renunciation.[14] In the
case under consideration, the provisions
of subject Codicil do not provide that
should Dr. Jorge Rabadilla default due
to predecease, incapacity or
renunciation, the testatrix's near
descendants would substitute him. What
the Codicil provides is that, should Dr.
Jorge Rabadilla or his heirs not fulfill the
conditions imposed in the Codicil, the
property referred to shall be seized and
turned over to the testatrix's near
descendants.
Neither is there a fideicommissary
substitution here and on this point,
petitioner is correct. In a
fideicommissary substitution, the first
heir is strictly mandated to preserve
the property and to transmit the same
later to the second heir.[15] In the case
under consideration, the instituted heir is
in fact allowed under the Codicil to
alienate the property provided the
negotiation is with the near descendants
or the sister of the testatrix. Thus, a very
important element of a fideicommissary
substitution is lacking; the obligation
clearly imposing upon the first heir the
preservation of the property and its
transmission to the second heir.
"Without this obligation to preserve
clearly imposed by the testator in his
will, there is no fideicommissary
substitution."[16] Also, the near
descendants' right to inherit from the
testatrix is not definite. The property will
only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the
obligation to deliver part of the usufruct
to private respondent.
Another important element of a
fideicommissary substitution is also
missing here. Under Article 863, the
second heir or the fideicommissary to
whom the property is transmitted must
not be beyond one degree from the first
heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first
heir is not related by first degree to the
second heir.[17] In the case under
scrutiny, the near descendants are not
at all related to the instituted heir, Dr.
Jorge Rabadilla.
The Court of Appeals erred not in ruling
that the institution of Dr. Jorge Rabadilla
under subject Codicil is in the nature of
13
a modal institution and therefore, Article
882 of the New Civil Code is the
Page
provision of law in point. Articles 882
and 883 of the New Civil Code provide:
Art. 882. The statement of the
object of the institution or the
application of the property left by
the testator, or the charge
imposed on him, shall not be
considered as a condition unless
it appears that such was his
intention.
That which has been left in this
manner may be claimed at once
provided that the instituted heir or
his heirs give security for
compliance with the wishes of the
testator and for the return of
anything he or they may receive,
together with its fruits and
interests, if he or they should
disregard this obligation.
Art. 883. When without the fault
of the heir, an institution referred
to in the preceding article cannot
take effect in the exact manner
stated by the testator, it shall be
complied with in a manner most
analogous to and in conformity
with his wishes.
The institution of an heir in the manner
prescribed in Article 882 is what is
known in the law of succession as
an institucion sub modo or a modal
institution. In a modal institution, the
testator states (1) the object of the
institution, (2) the purpose or application
of the property left by the testator, or (3)
the charge imposed by the testator upon
the heir.[18] A "mode" imposes an
obligation upon the heir or legatee but it
does not affect the efficacy of his rights
to the succession.[19] On the other hand,
in a conditional testamentary
disposition, the condition must happen
or be fulfilled in order for the heir to be
entitled to succeed the testator. The
condition suspends but does not
obligate; and the mode obligates but
does not suspend.[20] To some extent, it
is similar to a resolutory condition.[21]
From the provisions of the Codicil
litigated upon, it can be gleaned
unerringly that the testatrix intended that
subject property be inherited by Dr.
Jorge Rabadilla. It is likewise clearly
worded that the testatrix imposed an
obligation on the said instituted heir and
his successors-in-interest to deliver one
hundred piculs of sugar to the herein
private respondent, Marlena Coscolluela
Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr.
Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee,
dependent on the performance of the
said obligation. It is clear, though, that
should the obligation be not complied
with, the property shall be turned over to
the testatrix's near descendants. The
manner of institution of Dr. Jorge
Rabadilla under subject Codicil is
evidently modal in nature because it
imposes a charge upon the instituted
heir without, however, affecting the
efficacy of such institution.
Then too, since testamentary
dispositions are generally acts of
liberality, an obligation imposed upon
the heir should not be considered a
condition unless it clearly appears from
the Will itself that such was the intention
of the testator. In case of doubt, the
institution should be considered as
modal and not conditional.[22]
Neither is there tenability in the other
contention of petitioner that the private
respondent has only a right of usufruct
but not the right to seize the property
itself from the instituted heir because the
right to seize was expressly limited to
violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an
uncertainty arises on the face of the
Will, as to the application of any of its
provisions, the testator's intention is to
be ascertained from the words of the
Will, taking into consideration the
circumstances under which it was
made.[23] Such construction as will
sustain and uphold the Will in all its
parts must be adopted.[24]
Subject Codicil provides that the
instituted heir is under obligation to
deliver One Hundred (100) piculs of
sugar yearly to Marlena Belleza
Coscuella. Such obligation is imposed
on the instituted heir, Dr. Jorge
Rabadilla, his heirs, and their buyer,
lessee, or mortgagee should they sell,
lease, mortgage or otherwise negotiate
the property involved. The Codicil
14
further provides that in the event that the
obligation to deliver the sugar is not
Page
respected, Marlena Belleza Coscuella
shall seize the property and turn it over
to the testatrix's near descendants. The
non-performance of the said obligation
is thus with the sanction of seizure of
the property and reversion thereof to the
testatrix's near descendants. Since the
said obligation is clearly imposed by the
testatrix, not only on the instituted heir
but also on his successors-in-interest,
the sanction imposed by the testatrix in
case of non-fulfillment of said obligation
should equally apply to the instituted
heir and his successors-in-interest.

Similarly unsustainable is petitioner's

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

Suffice it to state that a Will is a

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

WHEREFORE, the petition is hereby

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

SO ORDERED.
15
Page
TESTATE estate of Carlos Gil, deceased.
ISABEL HERREROS VDA. DE
GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-
appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted
to probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil
Vda. de Murciano appealed to this Court,
raising only question of law. Her counsel
assigns the two following alleged errors:
Primer Error. — El Juzgado inferior erro
al dejar de declarar que el alegado
testamento de Carlos Gil no ha sido
otogar de acuerdo con la ley.
Segundo Error. — Erro finalmente a
legalizar el referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 años de edad,
residente de Porac, Pampanga, I. F.,
hallandome sano y en pleno goce de
mis facultades intelectuales, libre y
expontaneamente, sin violencia,
coaccion, dolo o influencia ilegal de
persona extraña, otorgo y ordeno este
mi testamento y ultima voluntad en
castellano, idioma que poseo y
entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio
con mi esposa la hoy Isabel Herreros no
tuvimos hijos;
2. Declaro que tengo propiedades
situadas en Manila y en la Provincia de
Regarding the correctness and accuracy of the
Pampanga;
above-copied alleged will, the court below said:
3. Doy y adjudico a mi querida esposa
Isabel Herretos todos mis bienes ya que
muebles e inmuebles situados en
Manila y en Pampanga, bajo la
condicion de que cuando esta muera y
si hayan bienes remanentes heredadas
por ella de mi, que dichos bienes
remanentes se adjudicaran a Don
Carlos Worrel.
4. Nombro como albacea de mis bienes
despues de mi fallecimiento al Dr.
Galicano Coronel a quien tengo
absoluta confianza, con relevacion de
fianza;
En testimonio de todo lo cual, firmo este
mi testamento y en el margen izquierdo
de cada una de sus dos paginas, utiles
con la clausula de atestiguamiento en
presencia de los testigos, quienes a su
vez firmaron cada una de dichas
paginas y la clausula de
atestiguamiento en mi presencia cada
uno de ellos con la de los demas, hoy
en Porac, Pampanga, I. F., el dia 27 de
Mayo de mil novecientos treinta y
nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos
mayores de edad, certificamos: que el
testamento que precede este escrito en
la lengua castellana que conoce la
testadora, compuesto de dos paginas
utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y
numeros en la parte superior de la
casilla, asi como todas las hojas del
mismo, en nuestra presencia y que
cada uno de nosotros hemos
atestiguado y firmado dicho documento
y todas las hojas del mismo en
presencia del testador y en la de cada
uno de nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAÑA
. . . The only copy available is a printed
form contained in the record appeal in
case G.R. No. L-254, entitled "Testate
Estate of Carlos Gil; Isabel Herreros
Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil,
16
oppositor and appellee." Both parties
are agreed that this is a true and correct
Page
 copy of the will. (P. 10, Record on
Appeal).
The appeal being only on questions of law the
above finding of the court below cannot be
disputed. The conclusions of law reached by
said court are based on it. Moreover, the
finding is correctly based on the evidence of
record. The parties agreed that said copy is
true and correct. If it were otherwise, they
would not have so agreed, considering that the
defect is of an essential character and is fatal
to the validity of the attestation clause.
It will be noted that the attestation clause
above quoted does not state that the alleged
testor signed the will. It declares only that it
was signed by the witnesses. This is a fatal
defect, for the precise purpose of the
attestation clause is to certify that the testator
signed the will, this being the most essential
element of the clause. Without it there is no
attestation at all. It is said that the court may
correct a mere clerical error. This is too much
of a clerical error for it effects the very essence
of the clause. Alleged errors may be
overlooked or correct only in matters of form
which do not affect the substance of the
statement.
It is claimed that the correction may be made
by inference. If we cure a deficiency by means
of inferences, when are we going to stop
making inferences to supply fatal deficiencies
in wills? Where are we to draw the line?
Following that procedure we would be making
interpolations by inferences, implication, and
even by internalcircumtantial evidence. This
would be done in the face of the clear,
uniquivocal, language of the statute as to how
the attestation clause should be made. It is to
be supposed that the drafter of the alleged will
read the clear words of the statute when he
prepared it. For the court to supply alleged
deficiencies would be against the evident
policy of the law. Section 618 of Act No. 190,
before it was amended, contained the following
provision:
. . . But the absence of such form of
attestation shall not render the will
invalid if it proven that the will was in
fact signed and attested as in this
section provided.
However, Act No. 2645 of the Philippine
Legislature, passed on July 1, 1916, besides
increasing the contents of the attestation
clause, entirely suppressed the above-quoted
provision. This would show that the purpose of
the amending act was to surround the
execution of a will with greater guarantees and
solemnities. Could we, in view of this, hold that
the court can cure alleged deficiencies by
inferences, implications,
and internal circumstantial evidence? Even in
ordinary cases the law requires certain
requisities for the conclusiveness of
circumstantial evidence.
It is contended that the deficiency in the
attestation clause is cured by the last
paragraph of the body of the alleged will, which
we have quoted above. At first glance, it is
queer that the alleged testator should have
made an attestation clause, which is the
function of the witness. But the important point
is that he attests or certifies his own signature,
or, to be accurate, his signature certifies itself.
It is evident that one cannot certify his own
signature, for it does not increase the evidence
of its authenticity. It would be like lifting one's
self by his own bootstraps. Consequently, the
last paragraph of the will cannot cure in any
way the fatal defect of the attestation clause of
the witnesses. Adding zero to an insufficient
amount does not make it sufficient.
It is said that the rules of statutory construction
are applicable to documents and wills. This is
true, but said rules apply to the body of the will,
containing the testamentary provisions, but not
to the attestation clause, which must be so
clear that it should not require any
construction.
The parties have cited pro and con several
decisions of the Supreme Court, some of which
are said to be rather strict and others liberal, in
the interpretation of section 618 of Act No. 190,
as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil.,
30, 31), the court had the following to say:
1. WILLS; ALLOWANCE OR
DISALLOWANCE; SECTIONS 618 AND
634 OF THE CODE OF CIVIL
PROCEDURE CONSTRUED. — The
right to dispose of the property by will is
governed entirely by statute. The law is
here found in section 618 of the Code of
Civil Procedure, as amended. The law
not alone carefully makes use of the
imperative, but cautiously goes further
and makes use of the negative, to
enforce legislative intention.
2. ID.; ID.; ATTESTATION. — The
Philippine authorities relating to the
17
attestation clause to wills reviewed. The
cases of Saño vs. Quintana ([1925], 48
Page
 Phil., 506), and Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152),
particularly compared. The decision in In
re Will of Quintana, supra, adopted and
reaffirmed. The decision in Nayve vs.
Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. — The portion of
section 618 of the Code of Civil
Procedure, as amended, which provides
that "The attestation clause shall state
the number of sheets or pages used,
upon which the will is written, and the
fact that the testator signed the will and
every page thereof, or caused some
other person to write his name, under
his express direction, in the presence of
three witnesses, and the latter
witnessed and signed the will and all
pages thereof in the presence of the
testator and of each other" applied and
enforced.
4. ID.; ID.; ID.; ID. — An attestation
clause which does not recite that the
witnesses signed the will and each and
every page thereof on the left margin in
the presence of the testator is defective,
and such a defect annuls the will.
(Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs.
Morata (54 Phil., 481, 482), Judge Manuel V.
Moran, now Chief Justice of the Supreme
Court, in his decision made the following
pronouncement:
. . . En la clausula de atestiguamiento
del testamento en cuestion, se hace
constar que los testadores firmaron el
testamento en presencia de los tres
testigos instrumentales y que estos
firmaron el testamento los unos en
presencia de los otros, pero no se hace
constar que dichos testigos firmaron el
testamento enpresencia de los
testadores, ni que estos y aquellos
firmaron todas y cada una de las
paginas del testamento los primeros en
presencia de los segundos y vice-versa.
En su virtud, se deniega la solicitud en
la que se pide la legalizacion del
alegado testamento Exhibit A de
Gregorio Pueblo y Carmen Quinto, y se
declara que Gregorio Pueblo murio
intestado.
The Supreme Court fully affirmed the decision,
laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE;
EVIDENCE TO SUPPLY DEFECTS OF.
— The attestation clause must be made
in strict conformity with the requirements
of section 618 of Act No. 190, as
amended. Where said clause fails to
show on its face a full compliance with
those requirements, the defect
constitutes sufficient ground for the
disallowance of the will. (Sano vs.
Quintana, 48 Phil., 506; Gumban vs.
Gorecho, 50 Phil., 30). Evidence aliunde
should not be admitted to establish facts
not appearing on the attestation clause,
and where said evidence has been
admitted it should not be given the effect
intended. (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF
SECTION 618 OF ACT NO. 190, AS
AMENDED. — Section 618 of Act No.
190, as amended, should be given a
strict interpretation in order to give effect
to the intention of the Legislature.
Statutes prescribing formalities to be
observed in the execution of wills are
very strictly construed. Courts cannot
supply the defensive execution of will.
(40 Cyc., p. 1079; Uy Coque vs. Navas
L. Sioca, supra.)
It is true that in subsequent decisions, the court
has somewhat relaxed the doctrine of
the Gumban vs. Gorchocase, supra, but not to
the extent of validating an attestation clause
similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378),
the testatrix signed the attestation clause which
was complete, and it was also signed by the
two attesting witnesses. For this reason, the
court said:
In reality, it appears that it is the testatrix
who makes the declaration about the
points contained in the above described
paragraph; however, as the witnesses,
together with the testatrix, have signed
the said declaration, we are of the
opinion and so hold that the words
above quoted of the testament
constitute a sufficient compliance with
the requirements of section 1 of Act No.
2645 which provides that: . . . (p.
381,supra.)
The attestation clause involved herein is very
different.
18
Page
In the case of Dischoso de Ticson vs. De
Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied
from a form book and reading: "We, the
undersigned attesting witnesses, whose
residences are stated opposite our
respective names, do hereby certify that
the testatrix, whose name is signed
hereinabove, has publish unto us the
foregoing will consisting of two pages as
her Last Will and Testament, and has
signed the same in our presence, and in
witness whereof we have each signed
the same and each page thereof in the
presence of said testatrix and in the
presence of each other," held not to be
fatally defective and to conform to the
law.
This very different from the attestation clause
in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz.,
1st Supplement, 196, No. 3, May 23, 1939),
the will was objected to on the ground that,
although the attestation clause stated that
"each of the pages of which the said will is
composed" was signed by the testatrix at the
left margin and at the foot of the fifth page, it
did not state that the signature was made in
the presence of the witnesses. It was held,
however, that said deficiency was cured by the
phrase "as well as by each of us in the
presence of the testatrix." The words "as well
as" indicate that the testatrix signed also in the
presence of the witnesses, for the phrase "as
well as" in this case is equivalent to "also." The
language is clear and, unlike the attestation
clause in the present case, does not
necessitate any correction. In the body of the
will the testatrix stated that she signed in the
presence of each and all of the three
witnesses. This was considered as a
corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz.,
3rd Supplement, 51, 52, No. 7, October 18,
1939; 68 Phil., 745), the attestation clause
reads as follows:
Suscrito y declarado por el testador
Valerio Leynez, como su ultima voluntad
y testamento en presencia de todos y
cada uno de nosotros, y a ruego de
dicho testador, firmamos el presente
cada uno en presencia de los otros, o
de los demas y de la del mismo
testsador, Valerio Leynez. El testamento
consta de dos (2) paginas solamente.
The objection was that the attestation clause
did not state that the testator and the witnesses
signed each and every page of the will. This
fact , however, appears in the will itself. It is
clear, therefore, that in case of the will
complied with all the requisites for its due
execution. In the instant case, essential words
were omitted.
In the case of Alcala vs. De Villa 1 (40 Off.
Gaz., 14th Supplement, 131, 134-135, No. 23,
April 18, 1939), the attestation clause reads as
follows:
Hacemos constar que en la fecha y
pueblo arriba mencionadios otorgo el
Sr. Emiliano Alcala su ultima voluntad o
testamentao compuesto de cuatro
paginas incluida ya esta clasula de
atestiguamiento. Que estabamos
presentes en el momento de leer y
ratificar el que el testamento arriba
mencionado es su ultima voluntad o
testamento compuesto de cuatro
paginasen papel de maquinilla. Que
igualmente estabamos presentes
cuando el firmo este documento al pie
del mismo y en el margen izquierdo de
cada pagina del testador tambien en
presencia suya y de cada uno de
nosotros en cada pagina y en el margen
izquierdo de esta escritura o
testamento. En su testimonio firmamos
abajo en prsencia del testador y de
cada uno de nosotros.
The above attestation clause is substantially
perfect. The only clerical error is that it says
"testador" instead of "testamento" in the phrase
"cada pagina del testador." The word "tambien"
renders unnecessary the use of the verb
"firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off.
Gaz., 1855, No. 9, June 27, 1941), the
attestation clause did not state the number of
pages of the will. However, it was held that this
deficiency was cured by the will itself, which
stated that it consisted of three pages and in
fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz.,
4938, 4940, No. 12, October 23, 1947),
decided by the Court of Appeals, the
attestation clause (translated in Spanish) reads
as follows:
Nosotros, los testigos, certificamos que
este que hemos firmado es el
19
testamento y ultima voluntad, que se ha
redactado en cuatro paginas, de
Page
 Numeriano Rallos, quien despues de
leer y de leer y de leerle el mencionado
testamento, y despues de que ella dio
su conformidad, firmo y marco con su
dedo pulgar derecho en nuestra
presencia y en presencia de cada uno
de nosotros, que asimismo cada uno de
nosotros, los testigos, firmamos
enpresencia de la testadora y en
presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is
the statement as to the signing of the testatrix
and the witnesses of each and every page of
the will, but the omission is cured by the fact
that their signatures appear on every page.
This attestation clause is different from that
involved in the present case.
There is no reason why wills should not be
executed by complying substantially with the
clear requisites of the law, leaving it to the
courts to supply essential elements. The right
to dispose of property by will is not natural but
statutory, and statutory requirements should be
satisfied.
The right to make a testamentary
disposition of one's property is purely of
statutory creation, and is available only
upon the compliance with the
requirements of the statute. The
formalities which the Legislature has
prescribed for the execution of a will are
essential to its validity, and cannot be
disregarded. The mode so prescribed is
the measure for the exercise of the right,
and the heir can be deprived of his
inheritance only by a compliance with
this mode. For the purpose of
determining whether a will has been
properly executed, the intention of the
testator in executing it is entitled to no
consideration. For that purpose only
intention of the Legislature, as
expressed in the language of the
statute, can be considered by the court,
and whether the will as presented,
shows a compliance with the statute.
Estate of Walker, 110 Cal., 387, 42
Pac., 815, 30 L. R. A., 460, 52 Am. St.
Rep. 104. In re Seaman's Estate, 80
Pac., 700, 701.)
In interpreting the legislature's thought,
courts have rigidly opposed any
exception tending to weaken the basic
principle underlying the law, the chief
purpose of which is to see that the
testator's wishes are observed. It is
possible, in some or many cases, a
decedent may have thought he had
made a will, but the statute says he had
not. The question is not one of his
intention, but of what he actually did, or .
. . failed to do. . . . It may happen . . .
that . . . wills . . . truly expressing the
intertions of the testator are made
without observations of the required
forms; and whenever that happens, the
genuine intention is frustrated. . . . The
Legislature . . . has taught of it best and
has therefore determined, to run the risk
of frustrating (that intention, . . . in
preference to the risk of giving effect to
or facilitating the formation of spurious
wills, by the absence of forms. . . . The
evil probably to arise by giving to wills
made without any form, . . ." or, in
derogation of testator's wishes,
fraudulently imposing spurious wills on
his effect on his estate. Churchill's
Estate, 260 Pac. 94, 101, 103 Atl. 533.
It has always been the policy of this
court to sustain a will if it is legally
possible to do so, but we cannot break
down the legislative barriers protecting a
man's property after death, even if a
situation may be presented apparently
meritorious. (In Re: Maginn, 30 A. L. R.,
pp. 419, 420.)
In view of the foregoing, the decision appealed
from is reversed, denying the probate of the
alleged will and declaring intestate the estate
of the deceased Carlos Gil. With costs against
the appellee. It is so ordered.
XXX
MONTINOLA VS HERBOSA (CA CASE)
XXX
20
Page
JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, respondent.
Primicias, Abad, Mencies & Castillo for
petitioner.
Moises Ma. Buhain for respondent.
TUAZON , J.:
This is an appeal from the Court of Appeals
which affirmed an order of the Court of First
Instance of Zambales denying the probate of
the last will and testament and
so-called codicil, identified as Exhibits A and B,
of Pilar Montealegre, deceased. The testatrix
was survived by the husband and collateral
relatives, some of whom, along with the
husband, were disinherited in Exhibit B for the
reasons set forth therein.
The opposition to Exhibit A was predicated on
alleged defects of the attestation clause.
Written in the local dialect known to the
testatrix, the attestation clause, as translated
into English in the record on appeal, reads:
The foregoing instrument consisting of
three pages, on the date above-
mentioned, was executed, signed and
published by testatrix Pilar Montealegre
and she declared that the said
instrument is her last will and testament;
that in our presence and also in the very
presence of the said testatrix as likewise
in the presence of two witnesses and
the testatrix each of us three witnesses
signed this a testament.
The opponent objected that this clause did not
estate that the tetratrix and the witnesses had
signed each and every page of the will or that
she had signed the instrument in the presence
of the witnesses. The Appellate Court
dismissed the first objection, finding that
"failure to estate in the attestation clause in
question that the testatrix and/or the witnesses
had signed each and every page of Exhibit A
were cured by the fact that each one of the
page of the instrument appears to be signed by
the testatrix and the three attesting witnesses
(Nayve vs. Mojal, 47 Phil., 152, (1924);
Ticson vs. Gorostiza, 57 Phil., (1932);
Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl.
(October 18, 1939), 510, 528;
Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)."
But granting the correctness of the premise,
the court held the second objection well taken
and thus concluded: "The question whether the
testatrix had signed in the presence of said
witnesses can not be verified upon physical
examination of the instrument. Hence, the
absence of the require statement in said clause
may not, pursuant to the decisions of the
Supreme Court, be offset by
proof aliunde even if admitted without any
objection."
The premise of the conclusion is, in our
opinion, incorrect.
It must be admitted that the attestation clause
was very poor drawn, its language exceedingly
ungrammatical to the point of being difficult to
understand; but from a close examination of
the whole context in relation to its purpose the
implication seems clear that the testatrix
signed in the presence of the witnesses.
Considering that the witnesses' only business
at hand was to sign and attest to the testatrix's
signing of the document, and that the only
actors of the proceeding were the maker and
the witnesses acting and speaking collectively
and in the first person, the phrase "in our
presence," used as it was in connection with
the process of signing, can not imply anything
but the testatrix signed before them. No other
inference is possible. The prepositional phrase
"in our presence" denotes an active verb and
the verb a subject. The verb could not be other
than signed and the subject no other than the
testatrix.
The use of the word "also" is no less
enlightening. It denotes that, as each of the
witnesses sign in the presence of the testatrix
and of one another, so the testatrix sign in
similar or like manner — in their presence.
In consonance with the principle of the liberal
interpretation, adhered to in numerous later
decision of this Court and affirmed and
translated into inactment in the new Civil Code
(Article 827), we are constrained to hold the
attestation clause under consideration
sufficient and valid.
"Precision of language in the drafting of the
attestation clause is desirable. However, it is
not imperative that a parrot-like copy of the
word of the statue be made. It is sufficient if
from the language employed it can reasonably
be deduced that the attestation clause fulfills
what the law expects of it."
(Ticson vs. Gorostiza, supra.)
"It could have been the intention of the
legislature in providing for the essential
safeguards in the execution of a will to shackle
the very right of the testamentary disposition
21
which the law recognizes and holds sacred."
(Leynesvs. Leynes, supra.)
Page
With reference of Exhibit B the Court of Appeal It is our judgment therefore that the
agreed with the trial court that the document instruments Exhibit A and B admitted to
having been executed one day before Exhibit A probate, subject of courts to the right of the
could not be considered as a codicil "because disinherited person under particle 850 to
a codicil, as the word implies, is only an contest the disinheritance, and it is so ordered,
addition to, or modification of, the will." The with costs against the appellee.
Court of Appeals added that "the content of
Exhibit B are couched in the language of
ordinarily used in a simple affidavit and as
such, may not have the legal effect and force
to a testamentary disposition." Furthermore,
the Court of Appeals observed, disinheritance
"may not be made in any instrument other than
the will of Exhibit A, as expressly provided for
in article 849 of the Civil Code," and, "there
being no disposition as to the disinheritance of
the oppositor, Pedro Lopez Porras (the
surviving spouse), in the said Exhibit A, it is
quite clear that he can not be disinherited in
any other instrument including Exhibit B, which
is, as above stated, a simple affidavit."

Exhibit B does partake of the nature of a will. A

will is defined in article 667 of the Civil code of
Spain as "the act by which a persons dispose
of all his property or a portion of it," and in
article 783 of the new Civil Code as "an act
whereby a person is permitted, with the
formalities prescribed by law, to control to a
certain degree the disposition of his estate, to
take effect after his death. Exhibit B comes
within this definition.

Being of testamentary character and having

been made with all the formalities of law,
Exhibit B is entitled to probate as an
independent testementary desposition. In the
absence of any legal provision to the contrary
— and there is none in this jurisdiction — it is
the general, well-established rule that two
separate and distinct wills may be probated if
one does not revoke the other (68 C.J., 885)
and provided that the statutory requirements
relative to the execution of wills have been
complied with (Id. 881). As seen, Exhibit B
embodied all the requisites of a will, even free
of such formal of literary imperfections as are
found in Exhibit A.

It also follows that Exhibit B is a legal and

effective vehicle for excluding lawful heirs from
testate or intestate succession. Article 849 of
the Civil Code of Spain does not, as the
appealed decision seems to insinuate, require
that the disinheritance should be accomplished
in the same instrument by which the maker
provides the disposition of his or her property
after his or death. This article merely provides
that "disinheritance can be affected only by a
22

will (any will) in which the legal cause upon

which it is based is expressly stated."
Page
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS
and ROWENA FAUSTINO-
CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private
respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided
by this Court 1 involving the probate of the two
wills of the late Dolores Luchangco Vitug, who
died in New York, U. S.A., on November 10,
1980, naming private respondent Rowena
Faustino-Corona executrix. In our said
decision, we upheld the appointment of Nenita
Alonte as co-special administrator of Mrs.
Vitug's estate with her (Mrs. Vitug's) widower,
petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed
a motion asking for authority from the probate
court to sell certain shares of stock and real
properties belonging to the estate to cover
allegedly his advances to the estate in the sum
of P667,731.66, plus interests, which he
claimed were personal funds. As found by the
Court of Appeals, 2the alleged advances
consisted of P58,147.40 spent for the payment
of estate tax, P518,834.27 as deficiency estate
tax, and P90,749.99 as "increment
thereto." 3 According to Mr. Vitug, he withdrew
the sums of P518,834.27 and P90,749.99 from
savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed
the motion to sell on the ground that the same
funds withdrawn from savings account No.
35342-038 were conjugal partnership
properties and part of the estate, and hence,
there was allegedly no ground for
reimbursement. She also sought his ouster for
failure to include the sums in question for
inventory and for "concealment of funds
belonging to the estate." 4
Vitug insists that the said funds are his
exclusive property having acquired the same
through a survivorship agreement executed
with his late wife and the bank on June 19,
1970. The agreement provides:
We hereby agree with each other
and with the BANK OF
AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION
(hereinafter referred to as the
BANK), that all money now or
hereafter deposited by us or any
or either of us with the BANK in
our joint savings current account
shall be the property of all or both
of us and shall be payable to and
collectible or withdrawable by
either or any of us during our
lifetime, and after the death of
either or any of us shall belong to
and be the sole property of the
survivor or survivors, and shall be
payable to and collectible or
withdrawable by such survivor or
survivors.
We further agree with each other
and the BANK that the receipt or
check of either, any or all of us
during our lifetime, or the receipt
or check of the survivor or
survivors, for any payment or
withdrawal made for our above-
mentioned account shall be valid
and sufficient release and
discharge of the BANK for such
payment or withdrawal. 5
The trial courts 6 upheld the validity of this
agreement and granted "the motion to sell
some of the estate of Dolores L. Vitug, the
proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total
sum of P667,731.66 ... ."7
On the other hand, the Court of Appeals, in the
petition for certiorari filed by the herein private
respondent, held that the above-quoted
survivorship agreement constitutes a
conveyance mortis causa which "did not
comply with the formalities of a valid will as
prescribed by Article 805 of the Civil
Code," 8 and secondly, assuming that it is a
mere donation inter vivos, it is a prohibited
donation under the provisions of Article 133 of
the Civil Code. 9
The dispositive portion of the decision of the
Court of Appeals states:
WHEREFORE, the order of
respondent Judge dated
November 26, 1985 (Annex II,
petition) is hereby set aside
insofar as it granted private
respondent's motion to sell
23
certain properties of the estate of
Dolores L. Vitug for
Page
 reimbursement of his alleged
advances to the estate, but the
same order is sustained in all
other respects. In addition,
respondent Judge is directed to
include provisionally the deposits
in Savings Account No. 35342-
038 with the Bank of America,
Makati, in the inventory of actual
properties possessed by the
spouses at the time of the
decedent's death. With costs
against private respondent. 10
In his petition, Vitug, the surviving spouse,
assails the appellate court's ruling on the
strength of our decisions inRivera v. People's
Bank and Trust Co. 11 and Macam v.
Gatmaitan 12 in which we sustained the validity
of "survivorship agreements" and considering
them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all,
one of mortis causa, which should be
embodied in a will. A will has been defined as
"a personal, solemn, revocable and free act by
which a capacitated person disposes of his
property and rights and declares or complies
with duties to take effect after his death." 14 In
other words, the bequest or device must
pertain to the testator. 15 In this case, the
monies subject of savings account No. 35342-
038 were in the nature of conjugal funds In the
case relied on, Rivera v. People's Bank and
Trust Co., 16 we rejected claims that a
survivorship agreement purports to deliver one
party's separate properties in favor of the other,
but simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently
predicated on the assumption
that Stephenson was the
exclusive owner of the funds-
deposited in the bank, which
assumption was in turn based on
the facts (1) that the account was
originally opened in the name of
Stephenson alone and (2) that
Ana Rivera "served only as
housemaid of the deceased." But
it not infrequently happens that a
person deposits money in the
bank in the name of another; and
in the instant case it also appears
that Ana Rivera served her
master for about nineteen years
without actually receiving her
salary from him. The fact that
subsequently Stephenson
transferred the account to the
name of himself and/or Ana
Rivera and executed with the
latter the survivorship agreement
in question although there was no
relation of kinship between them
but only that of master and
servant, nullifies the assumption
that Stephenson was the
exclusive owner of the bank
account. In the absence, then, of
clear proof to the contrary, we
must give full faith and credit to
the certificate of deposit which
recites in effect that the funds in
question belonged to Edgar
Stephenson and Ana Rivera; that
they were joint (and several)
owners thereof; and that either of
them could withdraw any part or
the whole of said account during
the lifetime of both, and the
balance, if any, upon the death of
either, belonged to the
survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that
Exhibit C is an aleatory contract
whereby, according to article
1790 of the Civil Code, one of the
parties or both reciprocally bind
themselves to give or do
something as an equivalent for
that which the other party is to
give or do in case of the
occurrence of an event which is
uncertain or will happen at an
indeterminate time. As already
stated, Leonarda was the owner
of the house and Juana of the
Buick automobile and most of the
furniture. By virtue of Exhibit C,
Juana would become the owner
of the house in case Leonarda
died first, and Leonarda would
become the owner of the
automobile and the furniture if
Juana were to die first. In this
manner Leonarda and Juana
reciprocally assigned their
respective property to one
24
another conditioned upon who
might die first, the time of death
Page
 determining the event upon which
the acquisition of such right by
the one or the other depended.
This contract, as any other
contract, is binding upon the
parties thereto. Inasmuch as
Leonarda had died before Juana,
the latter thereupon acquired the
ownership of the house, in the
same manner as Leonarda would
have acquired the ownership of
the automobile and of the
furniture if Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively
belonged to one party, and hence it must be
presumed to be conjugal, having been
acquired during the existence of the marita.
relations. 20
Neither is the survivorship agreement a
donation inter vivos, for obvious reasons,
because it was to take effect after the death of
one party. Secondly, it is not a donation
between the spouses because it involved no
conveyance of a spouse's own properties to
the other.
It is also our opinion that the agreement
involves no modification petition of the conjugal
partnership, as held by the Court of
Appeals, 21 by "mere stipulation" 22 and that it is
no "cloak" 23 to circumvent the law on conjugal
property relations. Certainly, the spouses are
not prohibited by law to invest conjugal
property, say, by way of a joint and several
bank account, more commonly denominated in
banking parlance as an "and/or" account. In
the case at bar, when the spouses Vitug
opened savings account No. 35342-038, they
merely put what rightfully belonged to them in a
money-making venture. They did not dispose
of it in favor of the other, which would have
arguably been sanctionable as a prohibited
donation. And since the funds were conjugal, it
can not be said that one spouse could have
pressured the other in placing his or her
deposits in the money pool.
The validity of the contract seems debatable by
reason of its "survivor-take-all" feature, but in
reality, that contract imposed a mere obligation
with a term, the term being death. Such
agreements are permitted by the Civil Code.24
Under Article 2010 of the Code:
ART. 2010. By an aleatory
contract, one of the parties or
both reciprocally bind themselves
to give or to do something in
consideration of what the other
shall give or do upon the
happening of an event which is
uncertain, or which is to occur at
an indeterminate time.
Under the aforequoted provision, the fulfillment
of an aleatory contract depends on either the
happening of an event which is (1) "uncertain,"
(2) "which is to occur at an indeterminate time."
A survivorship agreement, the sale of a
sweepstake ticket, a transaction stipulating on
the value of currency, and insurance have
been held to fall under the first category, while
a contract for life annuity or pension under
Article 2021, et sequentia, has been
categorized under the second. 25 In either
case, the element of risk is present. In the case
at bar, the risk was the death of one party and
survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship
agreement is per se not contrary
to law its operation or effect may
be violative of the law. For
instance, if it be shown in a given
case that such agreement is a
mere cloak to hide an inofficious
donation, to transfer property in
fraud of creditors, or to defeat the
legitime of a forced heir, it may
be assailed and annulled upon
such grounds. No such vice has
been imputed and established
against the agreement involved in
this case. 26
xxx xxx xxx
There is no demonstration here that the
survivorship agreement had been executed for
such unlawful purposes, or, as held by the
respondent court, in order to frustrate our laws
on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that
Mrs. Vitug having predeceased her husband,
the latter has acquired upon her death a vested
right over the amounts under savings account
No. 35342-038 of the Bank of America. Insofar
as the respondent court ordered their inclusion
in the inventory of assets left by Mrs. Vitug, we
hold that the court was in error. Being the
25
separate property of petitioner, it forms no
more part of the estate of the deceased.
Page
WHEREFORE, the decision of the respondent
appellate court, dated June 29, 1987, and its
resolution, dated February 9, 1988, are SET
ASIDE.

No costs.

SO ORDERED.

26
Page
DY YIENG SEANGIO, BARBARA D.
SEANGIO and VIRGINIA D.
SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as
Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO, ALBERTO
D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D.
SEANGIO, SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application
for the issuance of a writ of preliminary
injunction and/or temporary restraining order
seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the
Regional Trial Court of Manila, Branch 21 (the
RTC), dismissing the petition for probate on the
ground of preterition, in the consolidated
cases, docketed as SP. Proc. No. 98-90870
and SP. Proc. No. 99-93396, and entitled, "In
the Matter of the Intestate Estate of Segundo
C. Seangio v. Alfredo D. Seangio, et al." and
"In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio,
Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents
filed a petition for the settlement of the
intestate estate of the late Segundo Seangio,
docketed as Sp. Proc. No. 98–90870 of the
RTC, and praying for the appointment of
private respondent Elisa D. Seangio–Santos as
special administrator and guardian ad litem of
petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all
surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy
and in full command of her faculties; 2) the
deceased Segundo executed a general power
of attorney in favor of Virginia giving her the
power to manage and exercise control and
supervision over his business in the
Philippines; 3) Virginia is the most competent
and qualified to serve as the administrator of
the estate of Segundo because she is a
certified public accountant; and, 4) Segundo
left a holographic will, dated September 20,
1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In
view of the purported holographic will,
petitioners averred that in the event the
decedent is found to have left a will, the
intestate proceedings are to be automatically
suspended and replaced by the proceedings
for the probate of the will.
On April 7, 1999, a petition for the probate of
the holographic will of Segundo, docketed as
SP. Proc. No. 99–93396, was filed by
petitioners before the RTC. They likewise
reiterated that the probate proceedings should
take precedence over SP. Proc. No. 98–90870
because testate proceedings take precedence
and enjoy priority over intestate proceedings.2
The document that petitioners refer to as
Segundo’s holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa
naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip
at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at isan
beses siya ng sasalita ng masama harapan ko
at mga kapatid niya na si Virginia Seangio labis
kong kinasama ng loob ko at sasabe rin ni
Alfredo sa akin na ako nasa ibabaw gayon
gunit daratin ang araw na ako nasa ilalim siya
at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni
Alfredo ng akin pagalan para makapagutang
na kuarta siya at kanya asawa na si Merna de
los Reyes sa China Bangking Corporation na
millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng
China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at
ng kanyang asawa na mga custome[r] ng
Travel Center of the Philippines na
pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na
bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si
Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre
1995 sa longsod ng Manila sa harap ng tatlong
27
saksi. 3
Page
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion,
SP. Proc. No. 98–90870 and SP. Proc. No.
99–93396 were consolidated.4
On July 1, 1999, private respondents moved
for the dismissal of the probate
proceedings5 primarily on the ground that the
document purporting to be the holographic will
of Segundo does not contain any disposition of
the estate of the deceased and thus does not
meet the definition of a will under Article 783 of
the Civil Code. According to private
respondents, the will only shows an alleged act
of disinheritance by the decedent of his eldest
son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor
instituted as heir, devisee or legatee, hence,
there is preterition which would result to
intestacy. Such being the case, private
respondents maintained that while procedurally
the court is called upon to rule only on the
extrinsic validity of the will, it is not barred from
delving into the intrinsic validity of the same,
and ordering the dismissal of the petition for
probate when on the face of the will it is clear
that it contains no testamentary disposition of
the property of the decedent.
Petitioners filed their opposition to the motion
to dismiss contending that: 1) generally, the
authority of the probate court is limited only to
a determination of the extrinsic validity of the
will; 2) private respondents question the
intrinsic and not the extrinsic validity of the will;
3) disinheritance constitutes a disposition of
the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundo’s
will does not constitute a universal heir or heirs
to the exclusion of one or more compulsory
heirs.6
On August 10, 1999, the RTC issued its
assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al.,
clearly shows that there is preterition, as the
only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article
854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng
Seangio is concerned, Article 854 does not
apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this
petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in
the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its
position clear: "for … respondents to have
tolerated the probate of the will and allowed the
case to progress when, on its face, the will
appears to be intrinsically void … would have
been an exercise in futility. It would have
meant a waste of time, effort, expense, plus
added futility. The trial court could have denied
its probate outright or could have passed upon
the intrinsic validity of the testamentary
provisions before the extrinsic validity of the
will was resolved (underscoring supplied).
WHEREFORE, premises considered, the
Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings
No. 99–93396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was
denied by the RTC in its order dated October
14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN
EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION
OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST
1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT
EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT
28
ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING
Page
FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS
VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH
GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE
RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE
FACE OF THE TESTATOR’S WILL THAT NO
PRETERITON EXISTS AND THAT THE WILL
IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND
TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT
IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with
Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to:
a) fix the time and place for proving the will
when all concerned may appear to contest the
allowance thereof, and cause notice of such
time and place to be published three weeks
successively previous to the appointed time in
a newspaper of general circulation; and, b)
cause the mailing of said notice to the heirs,
legatees and devisees of the testator Segundo;
Second, the holographic will does not contain
any institution of an heir, but rather, as its title
clearly states,Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in
the decedent’s will and the holographic will on
its face is not intrinsically void;
Third, the testator intended all his compulsory
heirs, petitioners and private respondents alike,
with the sole exception of Alfredo, to inherit his
estate. None of the compulsory heirs in the
direct line of Segundo were preterited in the
holographic will since there was no institution
of an heir;
Fourth, inasmuch as it clearly appears from the
face of the holographic will that it is both
intrinsically and extrinsically valid, respondent
judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in
the intestate case will work injustice to
petitioners, and will render nugatory the
disinheritance of Alfredo.
The purported holographic will of Segundo that
was presented by petitioners was dated,
signed and written by him in his own
handwriting. Except on the ground of
preterition, private respondents did not raise
any issue as regards the authenticity of the
document.
The document, entitled Kasulatan ng Pag-Aalis
ng Mana, unmistakably showed Segundo’s
intention of excluding his eldest son, Alfredo,
as an heir to his estate for the reasons that he
cited therein. In effect, Alfredo was disinherited
by Segundo.
For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be
effected through a will wherein the legal cause
therefor shall be specified. With regard to the
reasons for the disinheritance that were stated
by Segundo in his document, the Court
believes that the incidents, taken as a whole,
can be considered a form of maltreatment of
Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the
disinheritance of a child or descendant under
Article 919 of the Civil Code:
Article 919. The following shall be sufficient
causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has
been found guilty of an attempt against
the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has
accused the testator of a crime for which
the law prescribes imprisonment for six
29
years or more, if the accusation has
been found groundless;
Page
 (3) When a child or descendant has
been convicted of adultery or
concubinage with the spouse of the
testator;
(4) When a child or descendant by
fraud, violence, intimidation, or undue
influence causes the testator to make a
will or to change one already made;
(5) A refusal without justifiable cause to
support the parents or ascendant who
disinherit such child or descendant;
(6) Maltreatment of the testator by word
or deed, by the child or descendant;8
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries
with it the penalty of civil interdiction.
Now, the critical issue to be determined is
whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article
810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator
himself. It is subject to no other form, and may
be made in or out of the Philippines, and need
not be witnessed.
Segundo’s document, although it may initially
come across as a mere disinheritance
instrument, conforms to the formalities of a
holographic will prescribed by law. It is written,
dated and signed by the hand of Segundo
himself. An intent to dispose mortis
causa[9] can be clearly deduced from the
terms of the instrument, and while it does not
make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In
other words, the disinheritance results in the
disposition of the property of the testator
Segundo in favor of those who would succeed
in the absence of Alfredo.10
Moreover, it is a fundamental principle that the
intent or the will of the testator, expressed in
the form and within the limits prescribed by
law, must be recognized as the supreme law in
succession. All rules of construction are
designed to ascertain and give effect to that
intention. It is only when the intention of the
testator is contrary to law, morals, or public
policy that it cannot be given effect.11
Holographic wills, therefore, being usually
prepared by one who is not learned in the law,
as illustrated in the present case, should be
construed more liberally than the ones drawn
by an expert, taking into account the
circumstances surrounding the execution of the
instrument and the intention of the testator.12 In
this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng
Pag-Aalis ng Mana, was intended by Segundo
to be his last testamentary act and was
executed by him in accordance with law in the
form of a holographic will. Unless the will is
probated,13 the disinheritance cannot be given
effect.14
With regard to the issue on preterition,15 the
Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was,
in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his
compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an
heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of
the petitioners, Virginia, in the document did
not operate to institute her as the universal
heir. Her name was included plainly as a
witness to the altercation between Segundo
and his son, Alfredo.1âwphi1
Considering that the questioned document is
Segundo’s holographic will, and that the law
favors testacy over intestacy, the probate of
the will cannot be dispensed with. Article 838
of the Civil Code provides that no will shall
pass either real or personal property unless it
is proved and allowed in accordance with the
Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his
property may be rendered nugatory.17
In view of the foregoing, the trial court,
therefore, should have allowed the holographic
will to be probated. It is settled that testate
proceedings for the settlement of the estate of
the decedent take precedence over intestate
proceedings for the same purpose.18
WHEREFORE, the petition is GRANTED. The
Orders of the Regional Trial Court of Manila,
Branch 21, dated August 10, 1999 and October
14, 1999, are set aside. Respondent judge is
directed to reinstate and hear SP Proc. No. 99-
93396 for the allowance of the holographic will
of Segundo Seangio. The intestate case or SP.
Proc. No. 98-90870 is hereby suspended until
the termination of the aforesaid testate
proceedings.
30
No costs.
Page
SO ORDERED.

ARTICLE 784

31
Page
ANTONIO CASTAÑEDA, plaintiff-appellee,
vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong and Quintos for appellant.
The court erred in holding that all legal
formalities had been complied with in the
execution of the will of Doña Juana Moreno, as
the proof shows that the said will was not
written in the presence of under the express
direction of the testratrix as required by section
618 of the Code of Civil Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be
disallowed are limited to those mentioned in
section 634 of the Code of Civil Procedure.
WILLARD, J.:
(1) The evidence in this case shows to our
satisfaction that the will of Doña Juana Moreno
was duly signed by herself in the presence of
three witnesses, who signed it as witnesses in
the presence of the testratrix and of each
other. It was therefore executed in conformity
with law.
There is nothing in the language of section 618
of the Code of Civil Procedure which supports
the claim of the appellants that the will must be
written by the testator himself or by someone
else in his presence and under his express
direction. That section requires (1) that the will
be in writing and (2) either that the testator sign
it himself or, if he does sign it, that it be signed
by some one in his presence and by his
express direction. Who does the mechanical
work of writing the will is a matter of
indifference. The fact, therefore, that in this
case the will was typewritten in the office of the
lawyer for the testratrix is of no consequence.
The English text of section 618 is very plain.
The mistakes in translation found in the first
Spanish edition of the code have been
corrected in the second.
(2) To establish conclusively as against
everyone, and once for all, the facts that a will
was executed with the formalities required by
law and that the testator was in a condition to
make a will, is the only purpose of the
proceedings under the new code for the
probate of a will. (Sec. 625.) The judgment in
such proceedings determines and can
determine nothing more. In them the court has
no power to pass upon the validity of any
provisions made in the will. It can not decide,
for example, that a certain legacy is void and
another one valid. It could not in this case
make any decision upon the question whether
the testratrix had the power to appoint by will a
guardian for the property of her children by her
first husband, or whether the person so
appointed was or was not a suitable person to
discharge such trust.
All such questions must be decided in some
other proceeding. The grounds on which a will
may be disallowed are stated the section 634.
Unless one of those grounds appears the will
must be allowed. They all have to do with the
personal condition of the testator at the time of
its execution and the formalities connected
therewith. It follows that neither this court nor
the court below has any jurisdiction in his
proceedings to pass upon the questions raised
by the appellants by the assignment of error
relating to the appointment of a guardian for
the children of the deceased.
It is claimed by the appellants that there was
no testimony in the court below to show that
the will executed by the deceased was the
same will presented to the court and
concerning which this hearing was had. It is
true that the evidence does not show that the
document in court was presented to the
witnesses and identified by them, as should
have been done. But we think that we are
justified in saying that it was assumed by all
the parties during the trial in the court below
that the will about which the witnesses were
testifying was the document then in court. No
suggestion of any kind was then made by the
counsel for the appellants that it was not the
same instrument. In the last question put to the
witness Gonzales the phrase "this will" is used
by the counsel for the appellants. In their
argument in that court, found on page 15 of the
record, they treat the testimony of the
witnesses as referring to the will probate they
were then opposing.
The judgment of the court below is affirmed,
eliminating therefrom, however, the clause "el
cual debera ejecutarse fiel y exactamente en
todas sus partes." The costs of this instance
will be charged against the appellants.
32
Page
 ARTICLE 788
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON,
BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA
DIZON, oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-
appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First
Instance of Pampanga approving the
Executrix-appellee's project of partition instead
of Oppositors-Appellants' proposed counter-
project of partition. 1
On January 28, 1961, the testatrix, Agripina J.
Valdez, a widow, died in Angeles, Pampanga,
and was survived by seven compulsory heirs,
to wit, six legitimate children named Estela
Dizon, Tomas V. Dizon, Bernardita Dizon,
Marina Dizon (herein executrix-appellee),
Angelina Dizon and Josefina Dizon, and a
legitimate granddaughter named Lilia Dizon,
who is the only legitimate child and heir of
Ramon Dizon, a pre-deceased legitimate son
of the said decedent. Six of these seven
compulsory heirs (except Marina Dizon, the
executrix-appellee) are the oppositors-
appellants.
The deceased testatrix left a last will executed
on February 2, 1960 and written in the
Pampango dialect. Named beneficiaries in her
will were the above-named compulsory heirs,
together with seven other legitimate
grandchildren, namely Pablo Rivera, Jr.,
Gilbert D. Garcia, Cayetano Dizon, Francisco
Rivera, Agripina Ayson, Jolly Jimenez and
Laureano Tiambon.
In her will, the testatrix divided, distributed and
disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of
land appraised at P5,849.60, household
furniture valued at P2,500.00, a bank deposit in
the sum of P409.95 and ten shares of
Pampanga Sugar Development Company
valued at P350.00) among her above-named
heirs.
Testate proceedings were in due course
commenced 2 and by order dated March 13,
1961, the last will and testament of the
decedent was duly allowed and admitted to
probate, and the appellee Marina Dizon-Rivera
was appointed executrix of the testatrix' estate,
and upon her filing her bond and oath of office,
letters testamentary were duly issued to her.
After the executrix filed her inventory of the
estate, Dr. Adelaido Bernardo of Angeles,
Pampanga was appointed commissioner to
appraise the properties of the estate. He filed
in due course his report of appraisal and the
same was approved in toto by the lower court
on December 12, 1963 upon joint petition of
the parties.
The real and personal properties of the
testatrix at the time of her death thus had a
total appraised value of P1,811,695.60, and
the legitime of each of the seven compulsory
heirs amounted to P129,362.11. 3 (¹/7 of the
half of the estate reserved for the legitime of
legitimate children and descendants). 4 In her
will, the testatrix "commanded that her property
be divided" in accordance with her
testamentary disposition, whereby she devised
and bequeathed specific real properties
comprising practically the entire bulk of her
estate among her six children and eight
grandchildren. The appraised values of the real
properties thus respectively devised by the
testatrix to the beneficiaries named in her will,
are as follows:
1. Estela Dizon
....................................... P
98,474.80
2. Angelina Dizon
.................................. 106,307.06
3. Bernardita Dizon
.................................. 51,968.17
4. Josefina Dizon
......................................
52,056.39
5. Tomas Dizon
.......................................
131,987.41
6. Lilia Dizon
..............................................
72,182.47
7. Marina Dizon
.....................................
1,148,063.71
8. Pablo Rivera, Jr.
......................................
69,280.00
9. Lilia Dizon, Gilbert Garcia,
33
Cayetano Dizon, Francisco
Rivera,
Page
 Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon
................. 72,540.00
Total Value ......................
P1,801,960.01
The executrix filed her project of partition dated
February 5, 1964, in substance adjudicating
the estate as follows:
(1) with the figure of P129,254.96
as legitime for a basis Marina
(exacultrix-appellee) and Tomas
(appellant) are admittedly
considered to have received in
the will more than their respective
legitime, while the rest of the
appellants, namely, Estela,
Bernardita, Angelina, Josefina
and Lilia received less than their
respective legitime;
(2) thus, to each of the latter are
adjudicated the properties
respectively given them in the
will, plus cash and/or properties,
to complete their respective
legitimes to P129,254.96; (3) on
the other hand, Marina and
Tomas are adjudicated the
properties that they received in
the will less the cash and/or
properties necessary to complete
the prejudiced legitime mentioned
in number 2 above;
(4) the adjudications made in the
will in favor of the grandchildren
remain
untouched.<äre||anº•1àw>
On the other hand oppositors
submitted their own counter-
project of partition dated
February 14, 1964, wherein they
proposed the distribution of the
estate on the following basis:
(a) all the testamentary
dispositions were proportionally
reduced to the value of one-half
(½) of the entire estate, the value
of the said one-half (½)
amounting to P905,534.78; (b)
the shares of the Oppositors-
Appellants should consist of their
legitime, plus the devises in their
favor proportionally reduced; (c)
in payment of the total shares of
the appellants in the entire
estate, the properties devised to
them plus other properties left by
the Testatrix and/or cash are
adjudicated to them; and (d) to
the grandchildren who are not
compulsory heirs are adjudicated
the properties respectively
devised to them subject to
reimbursement by Gilbert D.
Garcia, et al., of the sums by
which the devise in their favor
should be proportionally reduced.
Under the oppositors' counter-project of
partition, the testamentary disposition made by
the testatrix of practically her whole estate of
P1,801,960.01, as above stated, were
proposed to be reduced to the amounts set
forth after the names of the respective heirs
and devisees totalling one-half thereof as
follows:
1. Estela Dizon
........................................... P
49,485.56
2. Angelina Dizon
.........................................
53,421.42
3. Bernardita Dizon
.......................................
26,115.04
4. Josefina Dizon
..........................................
26,159.38
5. Tomas V. Dizon
.........................................
65,874.04
6. Lilia Dizon
..................................................
36,273.13
7. Marina Dizon
...........................................
576,938.82
8. Pablo Rivera, Jr.
.........................................
34,814.50
9. Grandchildren Gilbert Garcia et
al .......... 36,452.80
Total
...................................................
P905,534.78
while the other half of the estate (P905,534.78)
would be deemed as constituting the legitime
of the executrix-appellee and oppositors-
appellants, to be divided among them in seven
equal parts of P129,362.11 as their respective
legitimes.
34
The lower court, after hearing, sustained and
approved the executrix' project of partition,
Page
ruling that "(A)rticles 906 and 907 of the New
Civil Code specifically provide that when the
legitime is impaired or prejudiced, the same
shall be completed and satisfied. While it is
true that this process has been followed and
adhered to in the two projects of partition, it is
observed that the executrix and the oppositors
differ in respect to the source from which the
portion or portions shall be taken in order to
fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will
substantially result in a distribution of intestacy,
which is in controversion of Article 791 of the
New Civil Code" adding that "the testatrix has
chosen to favor certain heirs in her will for
reasons of her own, cannot be doubted. This is
legally permissible within the limitation of the
law, as aforecited." With reference to the
payment in cash of some P230,552.38,
principally by the executrix as the largest
beneficiary of the will to be paid to her five co-
heirs, the oppositors (excluding Tomas Dizon),
to complete their impaired legitimes, the lower
court ruled that "(T)he payment in cash so as
to make the proper adjustment to meet with the
requirements of the law in respect to legitimes
which have been impaired is, in our opinion, a
practical and valid solution in order to give
effect to the last wishes of the testatrix."
From the lower court's orders of approval,
oppositors-appellants have filed this appeal,
and raise anew the following issues: .
1. Whether or not the testamentary dispositions
made in the testatrix' will are in the nature of
devises imputable to the free portion of her
estate, and therefore subject to reduction;
2. Whether the appellants are entitled to the
devise plus their legitime under Article 1063, or
merely to demand completion of their legitime
under Article 906 of the Civil Code; and
3. Whether the appellants may be compelled to
accept payment in cash on account of their
legitime, instead of some of the real properties
left by the Testatrix;
which were adversely decided against them in
the proceedings below.
The issues raised present a matter of
determining the avowed intention of the
testatrix which is "the life and soul of a will." 5 In
consonance therewith, our Civil Code included
the new provisions found in Articles 788 and
791 thereof that "(I)f a testamentary disposition
admits of different interpretations, in case of
doubt, that interpretation by which the
disposition is to be operative shall be
preferred" and "(T)he words of a will are to
receive an interpretation which will give to
every expression some effect, rather than one
which will render any of the expressions
inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent
intestacy." In Villanueva vs. Juico 6 for violation
of these rules of interpretation as well as of
Rule 123, section 59 of the old Rules of
Court, 7 the Court, speaking through Mr.
Justice J.B.L. Reyes, overturned the lower
court's decision and stressed that "the intention
and wishes of the testator, when clearly
expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the
trial, relative to its execution and fulfillment,
must be settled in accordance therewith,
following the plain and literal meaning of the
testator's words, unless it clearly appears that
his intention was otherwise." 8
The testator's wishes and intention constitute
the first and principal law in the matter of
testaments, and to paraphrase an early
decision of the Supreme Court of
Spain, 9 when expressed clearly and precisely
in his last will amount to the only law whose
mandate must imperatively be faithfully obeyed
and complied with by his executors, heirs and
devisees and legatees, and neither these
interested parties nor the courts may substitute
their own criterion for the testator's will. Guided
and restricted by these fundamental premises,
the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that
the testatrix' testamentary disposition was in
the nature of a partition of her estate by will.
Thus, in the third paragraph of her will, after
commanding that upon her death all her
obligations as well as the expenses of her last
illness and funeral and the expenses for
probate of her last will and for the
administration of her property in accordance
with law, be paid, she expressly provided that
"it is my wish and I command that my property
be divided" in accordance with the dispositions
immediately thereafter following, whereby she
specified each real property in her estate and
designated the particular heir among her seven
compulsory heirs and seven other
grandchildren to whom she bequeathed the
same. This was a valid partition 10 of her
estate, as contemplated and authorized in the
first paragraph of Article 1080 of the Civil
Code, providing that "(S)hould a person make
a partition of his estate by an act inter vivos or
by will, such partition shall be respected,
insofar as it does not prejudice the legitime of
35
the compulsory heirs." This right of a testator to
partition his estate is subject only to the right of
Page
compulsory heirs to their legitime. The Civil
Code thus provides the safeguard for the right
of such compulsory heirs:
ART. 906. Any compulsory heir to
whom the testator has left by any
title less than the legitime
belonging to him may demand
that the same be fully satisfied.
ART. 907. Testamentary
dispositions that impair or
diminish the legitime of the
compulsory heirs shall be
reduced on petition of the same,
insofar as they may be inofficious
or excessive.
This was properly complied with
in the executrix-appellee's project
of partition, wherein the five
oppositors-appellants namely
Estela, Bernardita, Angelina,
Josefina and Lilia, were
adjudicated the properties
respectively distributed and
assigned to them by the testatrix
in her will, and the differential to
complete their respective
legitimes of P129,362.11 each
were taken from the cash and/or
properties of the executrix-
appellee, Marina, and their co-
oppositor-appellant, Tomas, who
admittedly were favored by the
testatrix and received in the
partition by will more than their
respective legitimes.
2. This right of a testator to partition his estate
by will was recognized even in Article 1056 of
the old Civil Code which has been reproduced
now as Article 1080 of the present Civil Code.
The only amendment in the provision was that
Article 1080 "now permits any person (not a
testator, as under the old law) to partition his
estate by actinter vivos." 11 This was intended
to repeal the then prevailing doctrine 12 that for
a testator to partition his estate by an actinter
vivos, he must first make a will with all the
formalities provided by law. Authoritative
commentators doubt the efficacy of the
amendment 13 but the question does not here
concern us, for this is a clear case of
partition by will, duly admitted to probate, which
perforce must be given full validity and effect.
Aside from the provisions of Articles 906 and
907 above quoted, other codal provisions
support the executrix-appellee's project of
partition as approved by the lower court rather
than the counter-project of partition proposed
by oppositors-appellants whereby they would
reduce the testamentary disposition or partition
made by the testatrix to one-half and limit the
same, which they would consider as mere
devises or legacies, to one-half of the estate as
the disposable free portion, and apply the other
half of the estate to payment of the legitimes of
the seven compulsory heirs. Oppositors'
proposal would amount substantially to a
distribution by intestacy and pro tanto nullify
the testatrix' will, contrary to Article 791 of the
Civil Code. It would further run counter to the
provisions of Article 1091 of the Civil Code that
"(A) partition legally made confers upon each
heir the exclusive ownership of the property
adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the
distribution made in the will of the deceased
testator Pedro Teves of two large coconut
plantations in favor of his daughter,
Concepcion, as against adverse claims of
other compulsory heirs, as being a partition by
will, which should be respected insofar as it
does not prejudice the legitime of the
compulsory heirs, in accordance with Article
1080 of the Civil Code. In upholding the sale
made by Concepcion to a stranger of the
plantations thus partitioned in her favor in the
deceased's will which was being questioned by
the other compulsory heirs, the Court ruled that
"Concepcion Teves by operation of law,
became the absolute owner of said lots
because 'A partition legally made confers upon
each heir the exclusive ownership of the
property adjudicated to him' (Article 1091, New
Civil Code), from the death of her ancestors,
subject to rights and obligations of the latter,
and, she can not be deprived of her rights
thereto except by the methods provided for by
law (Arts. 657, 659, and 661, Civil
Code). 15 Concepcion Teves could, as she did,
sell the lots in question as part of her share of
the proposed partition of the properties,
especially when, as in the present case, the
sale has been expressly recognized by herself
and her co-heirs ..."
4. The burden of oppositors' contention is that
the testamentary dispositions in their favor are
in the nature of devises of real property, citing
the testatrix' repeated use of the words "I
bequeath" in her assignment or distribution of
her real properties to the respective heirs.
From this erroneous premise, they proceed to
the equally erroneous conclusion that "the
legitime of the compulsory heirs passes to
them by operation of law and that the testator
can only dispose of the free portion, that is, the
36
remainder of the estate after deducting the
legitime of the compulsory heirs ... and all
Page
testamentary dispositions, either in the nature
of institution of heirs or of devises or legacies,
have to be taken from the remainder of the
testator's estate constituting the free
portion." 16
Oppositors err in their premises, for the
adjudications and assignments in the testatrix'
will of specific properties to specific heirs
cannot be considered all devises, for it clearly
appear from the whole context of the will and
the disposition by the testatrix of her whole
estate (save for some small properties of little
value already noted at the beginning of this
opinion) that her clear intention was to partition
her whole estate through her will. The repeated
use of the words "I bequeath" in her
testamentary dispositions acquire no legal
significance, such as to convert the same into
devises to be taken solely from the free one-
half disposable portion of the estate.
Furthermore, the testatrix' intent that her
testamentary dispositions were by way of
adjudications to the beneficiaries as heirs and
not as mere devisees, and that said
dispositions were therefore on account of the
respective legitimes of the compulsory heirs is
expressly borne out in the fourth paragraph of
her will, immediately following her testamentary
adjudications in the third paragraph in this
wise: "FOURTH: I likewise command that in
case any of those I named as my heirs in this
testament any of them shall die before I do, his
forced heirs under the law enforced at the time
of my death shall inherit the properties I
bequeath to said deceased." 17
Oppositors' conclusions necessarily are in
error. The testamentary dispositions of the
testatrix, being dispositions in favor of
compulsory heirs, do not have to be taken only
from the free portion of the estate, as
contended, for the second paragraph of Article
842 of the Civil Code precisely provides that
"(O)ne who has compulsory heirsmay dispose
of his estate provided he does not contravene
the provisions of this Code with regard to the
legitime of said heirs." And even going by
oppositors' own theory of bequests, the second
paragraph of Article 912 Civil Code covers
precisely the case of the executrix-appellee,
who admittedly was favored by the testatrix
with the large bulk of her estate in providing
that "(T)he devisee who is entitled to a legitime
may retain the entire property,provided its
value does not exceed that of the disposable
portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the
usual reason for making a testament;
otherwise, the decedent might as well die
intestate." 18 Fundamentally, of course, the
dispositions by the testatrix constituted a
partition by will, which by mandate of Article
1080 of the Civil Code and of the other cited
codal provisions upholding the primacy of the
testator's last will and testament, have to be
respected insofar as they do not prejudice the
legitime of the other compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil
Code that "(P)roperty left by will is not deemed
subject to collation, if the testator has not
otherwise provided, but the legitime shall in
any case remain unimpaired" and invoking of
the construction thereof given by some
authorities that "'not deemed subject to
collation' in this article really means not
imputable to or chargeable against the
legitime", while it may have some
plausibility 19 in an appropriate case, has no
application in the present case. Here, we have
a case of a distribution and partition of the
entire estate by the testatrix, without her having
made any previous donations during her
lifetime which would require collation to
determine the legitime of each heir nor having
left merely some properties by will which would
call for the application of Articles 1061 to 1063
of the Civil Code on collation. The amount of
the legitime of the heirs is here determined and
undisputed.
5. With this resolution of the decisive issue
raised by oppositors-appellants, the secondary
issues are likewise necessarily resolved. Their
right was merely to demand completion of their
legitime under Article 906 of the Civil Code and
this has been complied with in the approved
project of partition, and they can no longer
demand a further share from the remaining
portion of the estate, as bequeathed and
partitioned by the testatrix principally to the
executrix-appellee.
Neither may the appellants legally insist on
their legitime being completed with real
properties of the estate instead of being paid in
cash, per the approved project of partition. The
properties are not available for the purpose, as
the testatrix had specifically partitioned and
distributed them to her heirs, and the heirs are
called upon, as far as feasible to comply with
and give effect to the intention of the testatrix
as solemnized in her will, by implementing her
manifest wish of transmitting the real properties
intact to her named beneficiaries, principally
the executrix-appellee. The appraisal report of
the properties of the estate as filed by the
commissioner appointed by the lower court
was approved in toto upon joint petition of the
37
parties, and hence, there cannot be said to be
any question — and none is presented — as to
Page
fairness of the valuation thereof or that the
legitime of the heirs in terms of cash has been
understated. The plaint of oppositors that the
purchasing value of the Philippine peso has
greatly declined since the testatrix' death in
January, 1961 provides no legal basis or
justification for overturning the wishes and
intent of the testatrix. The transmission of
rights to the succession are transmitted from
the moment of death of the decedent (Article
777, Civil Code) and accordingly, the value
thereof must be reckoned as of then, as
otherwise, estates would never be settled if
there were to be a revaluation with every
subsequent fluctuation in the values of the
currency and properties of the estate. There is
evidence in the record that prior to November
25, 1964, one of the oppositors, Bernardita,
accepted the sum of P50,000.00 on account of
her inheritance, which, per the parties'
manifestation, 20 "does not in any way affect
the adjudication made to her in the projects of
partition of either party as the same is a mere
advance of the cash that she should receive in
both projects of partition." The payment in cash
by way of making the proper adjustments in
order to meet the requirements of the law on
non-impairment of legitimes as well as to give
effect to the last will of the testatrix has
invariably been availed of and
sanctioned. 21 That her co-oppositors would
receive their cash differentials only now when
the value of the currency has declined further,
whereas they could have received them earlier,
like Bernardita, at the time of approval of the
project of partition and when the peso's
purchasing value was higher, is due to their
own decision of pursuing the present appeal.

ACCORDINGLY, the orders appealed from are

hereby affirmed. Without cost.
38
Page
LEONOR VILLAFLOR VDA. DE
VILLANUEVA, plaintiff-appellant,
vs.
DELFIN N. JUICO, in his capacity as
Judicial Administrator of the testate estate
of FAUSTA NEPOMUCENO, defendant-
appellee.
Amado G. Salazar for plaintiff-appellant.
Sycip, Salazar, Luna and Associates for
defendant-appellee.
REYES, J.B.L., J.:
Subject to this direct appeal to us on points of
law is the decision of the Court of First
Instance of Rizal, in its Civil Case No. Q-2809,
dismissing plaintiff-appellant's complaint for the
recovery of certain properties that were
originally owned by the plaintiff's granduncle,
Nicolas Villaflor, and which he granted to his
widow, Doña Fausta Nepomuceno,
bequeathing to her "su uso y posesion
mientras viva y no se case en segundas
nupcias".
The following facts appear of record: On
October 9, 1908, Don Nicolas Villaflor, a
wealthy man of Castillejos, Zambales,
executed a will in Spanish in his own
handwriting, devising and bequeathing in favor
of his wife, Dona Fausta Nepomuceno, one-
half of all his real and personal properties,
giving the other half to his brother Don Fausto
Villaflor.
Clause 6th, containing the institution of heirs,
reads as follows: .
SEXTO — En virtud de las facultades
que me conceden las leyes, instituyo
per mis unicos y universales herederos
de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi
esposa Da. Fausta Nepomuceno para
que partan todos mis bienes que me
pertenescan, en iguales partes, para
despues de mi muerte, exceptuando las
donaciones y legados que, abajo mi
mas expontanea voluntad, lo hago en la
forma siguiente: .
SEPTIMO: — Lego para dispues de mi
muerte a mi esposa Da. Fausta
Nepomuceno, en prueba de mi amor y
carino, los bienes, alhajas y muebles
que a continuacion se expresan; .
OCTAVO: — Que estos legades
disfrutaria mi referida esposa Da.
Fausta Nepomuceno su uso y posesion
mientras viva y no se case en segundas
nupcias, de la contrario, pasara a ser
propiedad estos dichos legados de mi
sobrina nieta Leonor Villaflor.
The 12th clause of the will provided, however,
that Clauses 6th and 7th thereof would be
deemed annulled from the moment he bore
any child with Doña Fausta Nepomuceno. Said
Clause 12th reads as follows: .
DUODECIMO: — Quedan anulados las
parrafos 6.0 y 7.0 de este testamento
que tratan de institucion de herederos y
los legados que se haran despues de mi
muerte a favor de mi esposa, en el
momento que podre tener la dicha de
contrar con hijo y hijos legitimos o
legitimados, pues estos, conforme a ley
seran mis herederos.
Don Nicolas Villaflor died on March 3, 1922,
without begetting any child with his wife Doña
Fausta Nepomuceno. The latter, already a
widow, thereupon instituted Special
Proceeding No. 203 of the Court of First
Instance of Zambales, for the settlement of her
husband's estate and in that proceeding, she
was appointed judicial administratrix. In due
course of administration, she submitted a
project of partition, now Exhibit "E". In the order
of November 24, 1924, now exhibit "C", the
probate court approved the project of partition
and declared the proceeding closed. As the
project of partition, Exhibit "E", now shows
Doña Fausta Nepomuceno received by virtue
thereof the ownership and possession of a
considerable amount of real and personal
estate. By virtue also of the said project of
partition, she received the use and possession
of all the real and personal properties
mentioned and referred to in Clause 7th of the
will. The order approving the project of partition
(Exh. "C"), however, expressly provided that
approval thereof was "sin perjuicio de lo
dispuesto en la clausula 8.o del testamento de
Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno
died without having contracted a second
marriage, and without having begotten any
child with the deceased Nicolas Villaflor. Her
estate is now being settled in Special
Proceeding No. Q-1563 in the lower court, with
the defendant Delfin N. Juico as the duly
appointed and qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva
is admitted to be the same Leonor Villaflor
39
mentioned by Don Nicolas Villaflor in his will as
his "sobrina nieta Leonor Villaflor".
Page
Plaintiff Leonor Villaflor instituted the present
action against the administrator of the estate of
the widow Fausta Nepomuceno, on February
8, 1958, contending that upon the widow's
death, said plaintiff became vested with the
ownership of the real and personal properties
bequeathed by the late Nicolas Villaflor to
clause 7 of his will, pursuant to its eight (8th)
clause. Defendant's position, adopted by the
trial court, is that the title to the properties
aforesaid became absolutely vested in the
widow upon her death, on account of the fact
that she never remarried.
We agree with appellant that the plain desire
and intent of the testator, as manifested in
clause 8 of his testament, was to invest his
widow with only a usufruct or life tenure in the
properties described in the seventh clause,
subject to the further condition (admitted by the
appellee) that if the widow remarried, her rights
would thereupon cease, even during her own
lifetime. That the widow was meant to have no
more than a life interest in those properties,
even if she did not remarry at all, is evident
from the expressions used by the deceased
"uso y posesion mientras viva" (use and
possession while alive) in which the first half of
the phrase "uso y posesion" instead of
"dominio" or "propiedad") reinforces the second
("mientras viva"). The testator plainly did not
give his widow the full ownership of these
particular properties, but only the right to their
possession and use (or enjoyment) during her
lifetime. This is in contrast with the remainder
of the estate in which she was instituted
universal heir together with the testator's
brother (clause 6). 1äwphï1.ñët
SEXTO: — En virtud de las facultades
que me conceden las leyes, instituyo
por mis unicos y universales herederos
de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi
esposa Da. Fausta Nepomuceno para
que parten todos mis bienes que me
pertenescan, en iguales partes, para
despues de mi muerte, exceptuando las
donaciones y legados que, abajo mi
mas expontanea voluntad, lo hago en la
forma siguiente.
The court below, in holding that the appellant
Leonor Villaflor, as reversionary legatee, could
succeed to the properties bequeathed by
clause 7 of the testament only in the event that
the widow remarried, has unwarrantedly
discarded the expression "mientras viva," and
considered the words "uso y posesion" as
equivalent to "dominio" (ownership). In so
doing, the trial court violated Article 791 of the
Civil Code of the Philippines, as well as section
59 of Rule 123 of the Rules of Court.
ART. 791. The words of a will are to
receive an interpretation which will give
to every expression some effect, rather
than one which will render any of the
expressions inoperative; and of two
modes of interpreting a will, that one is
to be preferred which will prevent
intestacy." .
SEC. 59. Instrument construed so as to
give effect to all provisions. — In the
construction of an instrument where
there are several provisions or
particulars, such a construction is, if
possible, to be adopted as will give
effect to all." .
Speculation as to the motives of the testator in
imposing the conditions contained in clause 7
of his testament should not be allowed to
obscure the clear and unambiguous meaning
of his plain words, which are over the primary
source in ascertaining his intent. It is well to
note that if the testator had intended to impose
as sole condition the non-remarriage of his
widow, the words "uso y posesion mientras
viva" would have been unnecessary, since the
widow could only remarry during her own
lifetime.
The Civil Code, in Article 790, p. 1 (Article 675
of the Code of 1889), expressly enjoins the
following: .
ART. 790. The words of a will are to be
taken in their ordinary and grammatical
sense, unless a clear intention to use
them in another sense can be gathered,
and that other can be ascertained." .
Technical words in a will are to be taken
in their technical sense, unless the
context clearly indicates a contrary
intention, or unless it satisfactorily
appears that the will was drawn solely
by the testator, and that he was
unacquainted with such technical sense.
(675a)
In consonance with this rule, this Supreme
Court has laid the doctrine in In re Estate of
Calderon, 26 Phil., 233, that the intention and
wishes of the testator, when clearly expressed
in his will, constitute the fixed law of
interpretation, and all questions raised at the
trial, relative to its execution and fulfillment,
40
must be settled in accordance therewith,
following the plain and literal meaning of the
Page
testator's words, unless it clearly appears that
his intention was otherwise. The same rule is
adopted by the Supreme Court of Spain (TS.
Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril
1913; 16 Enero 1915; 23 Oct. 1925).

La voluntad del testador, clara, precisa y

constantemente expresada al ordenar
su ultimo voluntad, es ley unica,
imperativa y obligatoria que han de
obedecer y cumplir fieldmente albaceas,
legatarios y heredera, hoy sus
sucesores, sin que esa voluntad
patente, que no ha menester de
interpretaciones, pues no ofrece la
menor duda, pueda sustituirse, pues no
ofrece la menor duda, pueda sustituirse
por ningun otro criterio de alguna de los
interesados, ni tampoco por el judicial.
(Tribunal Supremo of Spain, Sent. 20
March 1918) .

The American decisions invoked by appellee in

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

PREMISES CONSIDERED, the decision

appealed from is reversed, and the appellant
Leonor Villaflor Vda. de VILLANUEVA is
declared entitled to the ownership and fruits of
the properties described in clause 7 of the will
or testament, from the date of the death of
Doña Fausta Nepomuceno. The records are
ordered remanded to the court of origin for
liquidation, accounting and further proceedings
conformably to this decision. Costs against the
Administrator-appellee.
41
Page
RAMON DEL ROSARIO, plaintiff-appellee,
vs.
CLEMENTE DEL ROSARIO, defendant-
appellant.
Lucas Gonzalez for appellant.
Rodriguez and Foz for appellee.
WILLARD, J.:
I. Don Nicolas del Rosario died in this city on
July 14, 1897, leaving a last will, the eighth,
ninth, eleventh, and eighteenth clauses of
which are as follows:
Eight. The testator declares that the
5,000 pesos which he brought to his
marriage he hereby bequeathes to his
nephew Enrique Gloria y Rosario and
Ramon del Rosario, natural children of
his brother Clemente del Rosario,
notwithstanding the fact that they
purport to be the issue of the marriage
of Escolastico Gloria and Rosendo del
Rosario, successively.
Ninth. The testator declares that the
said sum of 5,000 pesos is to be
divided, 3,000 pesos for the first named
and 2,000 pesos for the second named,
the delivery of the said sums to be
effected by the wife of the testator,
provided that these young men behave
themselves as they have done up to the
present time, and do not cease to study
until taking the degree of bachelor of
arts, and then take a business course, if
their health will permit, their support to
be paid out of the testamentary estate
and they to live in the house of the
widow.
Eleventh. The testator declares that in a
case the said young men should be still
engaged in study at the time of the
death of the testator's wife, they shall
continue to be supported at the expense
of the testamentary estate, without
deducting such expenses from their
legacies, if they should desire to
continue the same studies.
Eighteenth. The testator further states
that although his wife is at the present
time fifty-five years of age, and
consequently is not likely to marry
again, as she herself says, nevertheless
it is impossible that the opposite of what
she asserts might occur, and, if so, then
it is to be regarded as sufficient reason
to authorize the young men Ramon and
Enrique, so often referred to, separate
from their aunt, in which event they are
to be supported by the testamentary
estate on a small allowance of twenty-
five pesos per month, provided that they
continue their studies or should be in
poor health, this without in any respect
reducing the amount of their shares.
Don Ramon del Rosario, one of the persons
mentioned in these clauses, brought this action
in 1902 against Don Clemente del Rosario, the
then executor, asking, among other things, that
the said executor pay him an allowance from
the death of the widow of the testator at the
rate of 75 pesos a month, and that the
executor allow him to live in the house in which
the widow was living at that time.
The widow of the testator, Doña Honorata
Valdez, died on July 7, 1900.
The court below ordered judgment in respect to
this allowance, and the right to live in the
house as prayed for by the plaintiff. In this we
think that the court erred.
While by the eight clause the support of the
plaintiff and of Don Enrique Gloria is charged
against the estate, yet the eleventh clause
makes it plain that this unconditional right was
to last only during the lifetime of the widow.
After her death the right to this allowance is
made to depend on the continuance of their
studies. That this is the correct construction of
the will is made more plain by the eighteenth
clause above quoted. In the case of their
separation from their aunt by her remarriage,
they were entitled to the specified allowance of
25 pesos a month only on condition that they
were pursuing their studies or were in poor
health.
The court did not find that the plaintiff was still
pursuing his studies. On the contrary, he found
that the plaintiff had fulfilled the condition by
obtaining the degree of bachelor of arts in
1898.
The right to live in the house of the widow
terminated at her death.
II. The seventh clause of the will of Don
Nicolas is as follows:
Seventh. The testator states that in the
present condition of his affairs he has
acquired, during his married life, some
tens of thousands of dollars, of which
42
one-half belongs to his wife as her share
of the profits of the conjugal partnership,
Page
 and the other half belongs to him as his
share of such profits; but, in view of the
agreement entered into between the two
spouses, the property will not be
partitioned, and upon the death of the
testator all the said property will pass to
his wife, in order that she may enjoy the
revenue therefrom during her lifetime,
but without authority to convey any of
such property, inasmuch as she, being
grateful for the benefit resulting to her,
binds herself in turn to deliver said
property at her death to the testator's
brothers, Don Clemente del Rosario and
Don Rosendo del Rosario, and his
sister, Doña Luisa del Rosario, who
shall enjoy the revenue from the said
property during their respective lives,
and shall then, in turn, transmit the
same to their male children, both those
born in wedlock and natural children
who may be known.
This was later modified by a codicil, as follows:
That in seventh clause of said testament
he desires and wills that in the
distribution of his property and that of
his wife among the male children of his
brothers, Clemente and Rosendo del
Rosario, and those of his sister, Luisa
del Rosario, in such distribution his
nephews Enrique Gloria and Ramon del
Rosario must be understood to be
included, in addition to the legacies
mentioned in his said testament.
The thirteenth clause of his will was as follows:
The testator declares that in
case Doña Luisa del Rosario should die
before or after the wife of the testator,
then the legacy due her by virtue of this
will shall not pass in its entirety to her
male children, except as to the sum of
1,000 pesos, the remainder to pass to
Don Enrique Gloria Rosario and Don
Ramon del Rosario, natural sons of Don
Clemente del Rosario, as already
stated.
This was modified by the codicil as follows:
That in the thirteenth clause the testator
provided that upon the death of his
sister, Luisa del Rosario, her male
children were to inherit from her up to
the sum of 1,000 pesos, and this he
rectifies, for better understanding, to the
effect that it is his will that the remainder
of all her portion should be divided into
equal parts, one-third to go to his
brother Don Clemente del Rosario and
the other two-thirds to be divided equally
among his said nephews, Enrique Gloria
and Ramon del Rosario.
Doña Honorata Valdez made her will three
days after that of her husband. The seventh
clause is as follows:
The testatrix declares that she institutes
her beloved husband, Don Nicolas del
Rosario y Alejo, as her heir to all the
property which she may have at her
death, and in the unexpected case of
the death of her said husband then she
institute as heirs her brothers-in-law,
Don Rosendo and Don Clemente del
Rosario y Alejo, and her sister-in-
law, Doña Luisa del Rosario, who shall
enjoy the usufruct during their lifetime of
all the revenue of the said property.
Upon the death of any of them, the
property shall pass to the male children
of her said brothers-in-law and sister-in-
law, the issue of lawful marriage or
natural children who may be known; that
upon the death of her sister-in-
law, Doña Luisa, then her share shall
not pass in its entirety to her male
children, except the sum of 1,000 pesos,
Enrique Gloria and Don Ramon del
Rosario, natural children of her brother-
in-law Don Clemente del Rosario.
Doña Luisa died one yea after Don Nicolas and
two years before the death of Doña Honorata,
which, as has been said, occurred on July, 7,
1900.
Don Enrique Gloria died on July 6, 1900.
Don Ramon del Rosario claims in this action
that he is now entitled, by virtue of both wills, to
a certain part of the share of the estates left to
said Doña Luisa during her life, and he asks
that the defendant be directed to render
accounts and to proceed to the partition of the
said estates. The controversy between the
parties upon this branch of the case is as
follows:
The defendant claims that the plaintiff is
entitled to nothing under the wills, because the
gift to him was conditional, the condition being
that he should be the natural son of Don
Clemente, recognized by the latter as such in
one of the ways pointed out by the Civil Code;
that he can not prove such recognition, the
43
parol evidence presented at the trial being
Page
prohibited by said Code, and that he has
therefore not complied with the condition.
The plaintiff claims that such evidence was
proper, that both wills state that Don Ramon
del Rosario is the natural son of Don
Clemente, and that in any event the bequests
are made to the plaintiff by name.
The court below, holding the parol evidence
immaterial, ordered judgment for the plaintiff as
prayed for.
(1) So far as the disposition of that part of the
inheritance left in the aunt's will to Doña Luisa
for life is concerned, the question is free from
doubt. It is distinctly declared that Ramon del
Rosario and Enrique Gloria shall take certain
parts of it after 1,000 pesos have been
deducted. They are pointed out by name as the
legatees. It is true that they are called the
natural sons of Don Clemente. But this is
merely a further description of persons already
well identified, and, if false, can be rejected in
accordance with the provision of article 773 of
the Civil Code, which by article 789 is
applicable to legatees.
(2) The ninth clause of the will
of Doña Honorata is as follows:
The testatrix bequeaths the sum of 3,000
pesos to her nephews Enrique Gloria and
Ramon del Rosario in equal parts — that is,
1,500 pesos each.
The plaintiff was entitled to one-half of this
legacy in his own right. This has been paid to
him. Don Enrique Gloria died before his the
testatrix. By the provisions of articles 982 and
983 of the Civil Code the right of accretion
exists as to the other half in favor of the plaintiff
and he is entitled to have it paid to him.
(3) The will of Doña Honorata plainly declares
that, on the death of any one of the life tenants,
the male children of such tenant shall inherit,
and in respect to Doña Luisa it is expressly
declared that this shall take place whether she
dies before or after the testatrix. The derecho
de acrecer did not therefore exist in favor of the
other two life tenants, Don Clemente and Don
Rosendo. "En la sucesion testada es ley
preferente la voluntad del testador, de modo
que este prohibiendo expresamente el derecho
de acrecer, nombrando sustitutos, o marcando
el destino especial de cada porcion vacante,
excluye la aplicacion de los articulos que
vamos a examinar." (7 Manresa, Comentarios
al Codigo Civil, p. 276.)
This right does, however, exist in the share
of Doña Luisa in favor of the plaintiff, for the
reasons stated in connection with the legacy of
3,000 pesos.
(4) We have passed upon the rights of the
plaintiff to the share of Doña Luis under the will
of Doña Honorata, because the interest is
expressly left to him (en concepto de legado)
as a legacy. This is controlling. (5 Manresa,
315.)
These or equivalent words are wanting in the
will of Don Nicolas. Applying article 668 of the
Civil Code, we must hold that any interest
which the plaintiff may have taken in the share
of Doña Luisa under the will of Don Nicolas he
took as an heir and not as a legatee.
The distinction between the two is constantly
maintained throughout the Code, and their
rights and obligations differ materially. (Arts.
660, 668, 768, 790, 858, 891, 1003.)
(5) The legatee can demand his legacy from
the heir or from the executor, when the latter is
authorized to give it. (Art. 885.) The powers
given to the executors by the will
of Doña Honorata are contained in the
fourteenth clause, which is as follows:
The testatrix appoints as the executors
of her will, in the first place, her beloved
husband, Nicolas del Rosario y Alejo, in
the second place her brother-in-law
Clemente del Rosario, in the third place
her brother-in-law Rosendo del Rosario,
in the fourth place Don Ramon del
Rosario when he shall attain his
majority, all of them without bond and
free from the obligation of terminating
the administration within the legal term.
At her death they shall take possession
of all such goods and things as may be
her property, and are hereby authorized
fully and as required by law to prepare
an inventory of said property, and to
effect the division and partition of the
estate among her heirs. She also
authorizes them to execute and sign
deeds of partition, sales with a
resolutory condition, cancellations,
receipts, acquittances, and such other
documents as may be necessary.
The twenty-first clause of the will of Don
Nicolas is substantially the same. Each will
prohibited any judicial intervention in the
settlement of the estates.
44
Page
The clause in the will of Doña Honorata which
is a copy of that in the will of Don Nicolas is as
follows:
The testatrix declares that she expressly
prohibits any judicial intervention in this
her will, although minors, absentees, or
persons under disability be interested
therein, as it is her wish and will that all
the proceedings be conducted
extrajudicially, and in case a family
council should be necessary, she
designates the persons who, in
accordance with the provisions of the
Civil Code now in force, should form
such council, or else leaves their
appointment to the discretion of her
executors.
If the executor was not authorized to pay these
legacies, the heirs must pay them.
The life tenants and the heirs who take the
remainder under these wills are numerous. If
they did not pay the legacies and did not agree
upon an administrator, judicial intervention
would be necessary, the very thing which the
testators had expressly prohibited. The
important power of making the partition was
attempted to be given to the executors. In view
of these considerations and a study of the
whole will, we hold that the executors are given
power to pay the legacies.
The action, therefore, was properly directed
against the executor so far as it related to the
allowance and the legacy of 3,000 pesos. As to
these legacies, the action may be supported
also under article 902, 2, which allows
executors to pay money legacies.
It was also properly directed against him, so far
as it related to the share to which the plaintiff is
entitled under the will of Doña Honorata in the
portion to Doña Luisa for life.
The provisions of articles 1025-1027 are no
obstacle to this suit. That an inventory is being
formed, or that the creditors have not been
paid, is a matter of defense which should have
been set up in the answer.
It was not properly directed against him in so
far as it related to the similar share left to him
by the will of Don Nicolas. He took that as heir
and not a legatee, and the heir can maintain no
such action against the executor.
The fact that the plaintiff under the will
of Doña Honorata is a legatee of an aliquot
part of the estate, having become entitled to
receive one-third of it on the death
of Doña Luisa, does not prevent him from
maintaining this action against the executor.
Though such a legatee closely resembles an
heir, yet, like all other legatees, he must seek
his share from the heir or executor. (6
Manresa, 561.)
(6) While in this action he has a right to have
his interest as legatee declared, yet it can not
be delivered to him without a partition of the
estate.
It remains to be considered whether the
executor has power to make the partition. Such
power is expressly given by the will. This
provision is, however, void under the terms of
article 1057 of the Civil Code, which is as
follows:
The testator may, by an act inter
vivos or causa mortis, intrust the mere
power of making the division after his
death to any person who is not one of
the coheirs.
The provisions of this and the foregoing
articles shall be observed even should
there be a minor or a person subject to
guardianship among the coheirs; but the
trustee must in such case make an
inventory of the property of the
inheritance, citing the coheirs, the
creditors, and the legatees.
Don Clemente, the executor, against whom the
action was directed, was not only an heir as a
life tenant but also in the fee after his death of
Don Rosendo if the latter died without issue.
Upon the death of the widow, Doña Luisa then
being dead, it became his duty to divide the
estate into three parts, or at least to set off the
third, which was to pass to the plaintiff by the
death of the widow and Doña Luisa. In this
partition he was directly interested, for, with his
brother Don Rosendo, he had a life interest in
the part of the estate not set off to the plaintiff.
Article 1057 prohibited an heir from
being contador for this very reason, namely,
that the partition should be made impartially.
Although the executor has no power to make
the partition, the heirs can do so. Arts. 1058-
1060, Civil Code.)
The plaintiff is not bound to remain a co-owner
with the other heirs. Being a legatee of an
aliqout part, he has the same right to seek a
partition that an heir has. (7 Manresa, 578; art.
45
1051, Codigo Civil.) But in so seeking it he
must make parties to his suit all persons
Page
interested in the estate (7 Manresa, 577). This
he has not done in this suit, and he
consequently is not entitled to the partition
ordered by the court below.
(7) We have held that the only thing that can
be decided in this case is the rights of the
plaintiff as legatee.
The court below ordered the executor to render
accounts of his administration of both estates.
As to the estate of Don Nicolas, the only thing
here in question is the right to the allowance.
As we hold that the plaintiff is not entitled to it,
he is not entitled to any statement of accounts
as such pretended legatee.
As to the estate of Doña Honorata, he is
entitled to be paid a legacy of 1,500 pesos.
Article 907 requires the executor to render
accounts to the heir, not to the legatee; and
although by article 789 all of the provisions of
Chapter II (in which both articles are found)
relating to heirs are made applicable to
legatees, we can not hold that this requires an
executor to submit his accounts to one who
has no interest in the estate except to a money
legacy when there is no suggestion that it will
not be paid when the right to it is established.
In respect to the share of Doña Luisa, there is
reason for saying that a legatee on an aliquot
part is entitled to an accounting. But, inasmuch
as in this case there can be no final
determination of the rights of the parties
interested in the estate, because they are not
all parties to this suit, the executor should not
in this suit be ordered to submit his accounts.
(8) The plaintiff in his complaint has limited
himself to claiming the allowance, his rights to
the share of DoñaLuisa, and the legacies left to
him.
The question as to whether he would be
entitled to any part of the share of Don
Clemente upon the latter's death, under the
seventh clause of the two wills, was not
presented by the complaint nor passed upon
by the court and is not before us for decision.
(9) The result of the foregoing considerations
is:
1. The plaintiff is not entitled to any allowance
under either will.
2. He is not entitled to live in the house No. 128
Calle Clavel.
3. He is entitled to be paid, under the ninth
clause of the will of Doña Honorata, the sum of
1,500 pesos, in addition to the 1,500 pesos
already received under that clause.
4. He is entitled to the share of the estate left
by the will of Doña Honorata to Doña Luisa
during her life, after deducting 1,000 pesos.
5. This share can not be set off to him in this
suit, but only in a proceeding to which all
persons interested in the estate are parties.
6. His interest in the share left to Doña Luis
during her life by the will of Don Nicolas can
not be determined in this suit.
7. The executor can not be required to render
in this suit his accounts as such executor.
8. The plaintiff's rights under the seventh
clause of the two wills, to the share left to Don
Clemente for life are not before us for decision.
III. After judgment had been rendered in the
court below and a bill of exceptions allowed,
but before the record had been sent to this
court, Don Clemente del Rosario, the
defendant, died. After his death Don Rosendo
del Rosario, who was named in both wills to
succeed to the executorship on the death of
Don Clemente, appeared in the court below
and withdrew the appeal and bill of exceptions.
Thereupon the widow of Don Clemente, for
herself and in representation of the minor son
of her late husband, asked and was granted
leave to prosecute the appeal.
This ruling was correct. According to the
Spanish authorities, anyone legally affected by
the judgment might appeal. According to the
American authorities, if a trustee refuses to
appeal, the beneficiary may do so in his name.
That the son of Don Clemente has a direct
interest in the question of the allowance of 75
pesos a month to the plaintiff is plain. We have
held that in respect to this allowance the
executor represents the estate and the
judgment against him binds it.
It would be manifestly unjust to allow an
executor, with perhaps only a slight personal
interest in an estate, by withdrawing an appeal,
to fasten upon the estate a claim which, as we
hold, it should not bear.
IV. At the argument of this case on the merits,
after the appellant had closed, the respondent
46
made the point for the first time that the
Page
appellant's brief contained no assignment of
errors.

This is true. But a full assignment of errors is

found in the bill of exceptions at pages 14 and
15. The appellee answered the brief of the
appellant without making any suggestion of this
mistake. He has been in no way prejudiced by
it, and we can not affirm the judgment on this
ground.

The judgment of the court below is reversed

and the case remanded with directions to the
court below to enter judgment in accordance
with this opinion. The costs of this instance will
be equally divided between the parties. So
ordered.

47
Page
 ARTICLE 789
TESTATE ESTATE OF THE LATE
REVEREND FATHER PASCUAL RIGOR.
THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA,
TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR,
FRANCISCA ESCOBAR DE RIGOR and
JOVITA ESCOBAR DE
FAUSTO,respondents-appellees.
D. Tañedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or
enforceability of a devise of ricelands located
at Guimba, Nueva Ecija, with a total area of
around forty- four hectares That devise was
made in the will of the late Father Pascual
Rigor, a native of Victoria Tarlac, in favor of his
nearest male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed to be
a trustee of the said lands, appealed to this
Court from the decision of the Court of Appeals
affirming the order of the probate court
declaring that the said devise was inoperative
(Rigor vs. Parish Priest of the Roman Catholic
Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
The record discloses that Father Rigor, the
parish priest of Pulilan, Bulacan, died on
August 9, 1935, leaving a will executed on
October 29, 1933 which was probated by the
Court of First Instance of Tarlac in its order of
December 5, 1935. Named as devisees in the
will were the testators nearest relatives,
namely, his three sisters: Florencia Rigor-
Escobar, Belina Rigor-Manaloto and Nestora
Rigor-Quiambao. The testator gave a devise to
his cousin, Fortunato Gamalinda.
In addition, the will contained the following
controversial bequest (paragraphing supplied
to facilitate comprehension of the testamentary
provisions):
Doy y dejo como legado
CUATRO (4) PARCELAS de
terreno palayeros situados en el
municipiooo de Guimba de la
provinciaaa de NUEVA ECIJA,
cuyo num. de CERTIFICADO DE
TRANSFERENCIA DE TITULO
SON; — Titulo Num. 6530, mide
16,249 m. cuadrados de
superficie Titulo Num. 6548, mide
242,998 m. cuadrados de
superficie y annual 6525, mide
62,665 m. cuadrados de
superficie; y Titulo Num. 6521,
mide 119,251 m. cuadrados de
superficie; a cualquier pariente
mio varon mas cercano que
estudie la carrera eclesiatica
hasta ordenarse de Presbiterado
o sea Sacerdote; las condiciones
de estate legado son;
(1.a) Prohibe en absoluto la
venta de estos terrenos arriba
situados objectos de este legado;
(2.a) Que el legatario pariente
mio mas cercano tendra derecho
de empezar a gozar y administrar
de este legado al principiar a
curzar la Sagrada Teologio, y
ordenado de Sacerdote, hasta su
muerte; pero que pierde el
legatario este derecho de
administrar y gozar de este
legado al dejar de continuar sus
estudios para ordenarse de
Presbiterado (Sacerdote).
Que el legatario una vez
Sacerdote ya estara obligado a
celebrar cada año VEINTE (20)
Misas rezadas en sufragio de mi
alma y de mis padres difuntos, y
si el actual legatario, quedase
excomulgado, IPSO FACTO se le
despoja este legado, y la
administracion de esto pasara a
cargo del actual Parroco y sus
sucesores de la Iglecia Catolica
de Victoria, Tarlac.
Y en intervalo de tiempo que no
haya legatario acondicionado
segun lo arriba queda expresado,
pasara la administracion de este
legado a cargo del actual Parroco
Catolico y sus sucesores, de
Victoria, Tarlac.
El Parroco administrador de
estate legado, acumulara,
48
anualmente todos los productos
que puede tener estate legado,
Page
 ganando o sacando de los
productos anuales el CINCO (5)
por ciento para su
administracion, y los derechos
correspondientes de las VEINTE
(20) Misas rezadas que debiera
el Parroco celebrar cada año,
depositando todo lo restante de
los productos de estate legado,
en un banco, a nombre de estate
legado.
To implement the foregoing bequest, the
administratix in 1940 submitted a project
containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of
the legacy purported to be given
to the nearest male relative who
shall take the priesthood, and in
the interim to be administered by
the actual Catholic Priest of the
Roman Catholic Church of
Victoria, Tarlac, Philippines, or
his successors, the real
properties hereinbelow indicated,
to wit:
Title Lot Area in Tax Ass.
No. No. Has. Dec. Value
T- P declared the bequest inoperative and
6530 3663 1.6249 18740 340.00
T- 3445-
6548 C 24.2998 18730 7,290.00
T-
6525 3670 6.2665 18736 1,880.00
T-
6521 3666 11.9251 18733 3,580.00
Total amount and value — 44.1163
P13,090.00
Judge Roman A. Cruz in his order of August
15, 1940, approving the project of partition,
directed that after payment of the obligations of
the estate (including the sum of P3,132.26 due
to the church of the Victoria parish) the
administratrix should deliver to the devisees
their respective shares.
It may be noted that the administratrix and
Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor's
bequest to his nearest male relative who would
study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and
as the administratrix and the legal heirs
believed that the parish priest of Victoria had
no right to administer the ricelands, the same
were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the
project of partition, or on February 19, 1954,
the parish priest of Victoria filed in the pending
testate proceeding a petition praying for the
appointment of a new administrator
(succeeding the deceased administration
Florencia Rigor), who should deliver to the
church the said ricelands, and further praying
that the possessors thereof be ordered to
render an accounting of the fruits. The probate
court granted the petition. A new administrator
was appointed. On January 31, 1957 the
parish priest filed another petition for the
delivery of the ricelands to the church as
trustee.
The intestate heirs of Father Rigor countered
with a petition dated March 25, 1957 praying
that the bequest be d inoperative and that they
be adjudged as the persons entitled to the said
ricelands since, as admitted by the parish
priest of Victoria, "no nearest male relative of"
the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
That petition was opposed by the parish priest
of Victoria.
Finding that petition to be meritorious, the
lower court, through Judge Bernabe de Aquino,
adjudicated the ricelands to the testator's legal
heirs in his order of June 28, 1957. The parish
priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion
for reconsideration in his order of December
10, 1957 on the ground that the testator had a
grandnephew named Edgardo G. Cunanan
(the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The
administrator was directed to deliver the
ricelands to the parish priest of Victoria as
trustee.
The legal heirs appealed to the Court of
Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust
for his nearest male relative who would take
the holy orders but that such trust could exist
only for twenty years because to enforce it
beyond that period would violate "the rule
against perpetuities. It ruled that since no
legatee claimed the ricelands within twenty
years after the testator's death, the same
should pass to his legal heirs, citing articles
49
888 and 912(2) of the old Civil Code and article
870 of the new Civil Code.
Page
The parish priest in this appeal contends that
the Court of Appeals erred in not finding that
the testator created a public charitable trust
and in not liberally construing the testamentary
provisions so as to render the trust operative
and to prevent intestacy.
As refutation, the legal heirs argue that the
Court of Appeals d the bequest inoperative
because no one among the testator's nearest
male relatives had studied for the priesthood
and not because the trust was a private
charitable trust. According to the legal heirs,
that factual finding is binding on this Court.
They point out that appellant priest's change of
theory cannot be countenanced in this appeal .
In this case, as in cases involving the law of
contracts and statutory construction, where the
intention of the contracting parties or of the
lawmaking body is to be ascertained, the
primary issue is the determination of the
testator's intention which is the law of the case
(dicat testor et erit lex. Santos vs. Manarang,
27 Phil. 209, 215; Rodriguez vs. Court of
Appeals, L-28734, March 28, 1969, 27 SCRA
546).
The will of the testator is the first and principal
law in the matter of testaments. When his
intention is clearly and precisely expressed,
any interpretation must be in accord with the
plain and literal meaning of his words, except
when it may certainly appear that his intention
was different from that literally expressed (In
re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in
the construction of wills." It is "the life and soul
of a will It is "the first greatest rule, the
sovereign guide, the polestar, in giving effect to
a will". (See Dissent of Justice Moreland in
Santos vs. Manarang, 27 Phil. 209, 223, 237-
8.)
One canon in the interpretation of the
testamentary provisions is that "the testator's
intention is to be ascertained from the words of
the wilt taking into consideration the
circumstances under which it was made", but
excluding the testator's oral declarations as to
his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be
useful to make the following re-statement of
the provisions of his will.
1. that he bequeathed the ricelands to anyone
of his nearest male relatives who would pursue
an ecclesiastical career until his ordination as a
priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his
studies in sacred theology could enjoy and
administer the ricelands, and once ordained as
a priest, he could continue enjoying and
administering the same up to the time of his
death but the devisee would cease to enjoy
and administer the ricelands if he discontinued
his studies for the priesthood.
4. That if the devisee became a priest, he
would be obligated to celebrate every year
twenty masses with prayers for the repose of
the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he
would be divested of the legacy and the
administration of the riceland would pass to the
incumbent parish priest of Victoria and his
successors.
6. That during the interval of time that there is
no qualified devisee as contemplated above,
the administration of the ricelands would be
under the responsibility of the incumbent parish
priest of Victoria and his successors, and
7. That the parish priest-administrator of the
ricelands would accumulate annually the
products thereof, obtaining or getting from the
annual produce five percent thereof for his
administration and the fees corresponding to
the twenty masses with prayers that the parish
priest would celebrate for each year, depositing
the balance of the income of the devise in the
bank in the name of his bequest.
From the foregoing testamentary provisions, it
may be deduced that the testator intended to
devise the ricelands to his nearest male
relative who would become a priest, who was
forbidden to sell the ricelands, who would lose
the devise if he discontinued his studies for the
priesthood, or having been ordained a priest,
he was excommunicated, and who would be
obligated to say annually twenty masses with
prayers for the repose of the souls of the
testator and his parents.
On the other hand, it is clear that the parish
priest of Victoria would administer the ricelands
only in two situations: one, during the interval
of time that no nearest male relative of the
testator was studying for the priesthood and
two, in case the testator's nephew became a
50
priest and he was excommunicated.
Page
What is not clear is the duration of "el intervalo
de tiempo que no haya legatario
acondicionado", or how long after the testator's
death would it be determined that he had a
nephew who would pursue an ecclesiastical
vocation. It is that patent ambiguity that has
brought about the controversy between the
parish priest of Victoria and the testator's legal
heirs.
Interwoven with that equivocal provision is the
time when the nearest male relative who would
study for the priesthood should be
determined. Did the testator contemplate only
his nearest male relative at the time of his
death? Or did he have in mind any of his
nearest male relatives at anytime after his
death?
We hold that the said bequest refers to the
testator's nearest male relative living at the
time of his death and not to any indefinite time
thereafter. "In order to be capacitated to inherit,
the heir, devisee or legatee must be living at
the moment the succession opens, except in
case of representation, when it is proper" (Art.
1025, Civil Code).
The said testamentary provisions should be
sensibly or reasonably construed. To construe
them as referring to the testator's nearest male
relative at anytime after his death would render
the provisions difficult to apply and create
uncertainty as to the disposition of his estate.
That could not have been his intention.
In 1935, when the testator died, his nearest
leagal heirs were his three sisters or second-
degree relatives, Mrs. Escobar, Mrs. Manaloto
and Mrs. Quiambao. Obviously, when the
testator specified his nearest male relative, he
must have had in mind his nephew or a son of
his sister, who would be his third-degree
relative, or possibly a grandnephew. But since
he could not prognosticate the exact date of his
death or state with certitude what category of
nearest male relative would be living at the
time of his death, he could not specify that his
nearest male relative would be his nephew or
grandnephews (the son of his nephew or
niece) and so he had to use the term "nearest
male relative".
It is contended by the legal heirs that the said
devise was in reality intended for Ramon
Quiambao, the testator's nephew and godchild,
who was the son of his sister, Mrs. Quiambao.
To prove that contention, the legal heirs
presented in the lower court the affidavit of
Beatriz Gamalinda, the maternal grandmother
of Edgardo Cunanan, who deposed that after
Father Rigor's death her own son, Valentin
Gamalinda, Jr., did not claim the devise,
although he was studying for the priesthood at
the San Carlos Seminary, because she
(Beatriz) knew that Father Rigor had intended
that devise for his nearest male
relative beloning to the Rigor family (pp. 105-
114, Record on Appeal).
Mrs. Gamalinda further deposed that her own
grandchild, Edgardo G. Cunanan, was not the
one contemplated in Father Rigor's will and
that Edgardo's father told her that he was not
consulted by the parish priest of Victoria before
the latter filed his second motion for
reconsideration which was based on the
ground that the testator's grandnephew,
Edgardo, was studying for the priesthood at the
San Jose Seminary.
Parenthetically, it should be stated at this
juncture that Edgardo ceased to be a
seminarian in 1961. For that reason, the legal
heirs apprised the Court of Appeals that the
probate court's order adjudicating the ricelands
to the parish priest of Victoria had no more leg
to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is
tantamount to evidence aliunde as to the
testator's intention and which is hearsay, has
no probative value. Our opinion that the said
bequest refers to the testator's nephew who
was living at the time of his death, when his
succession was opened and the successional
rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of
the will.
Had the testator intended that the "cualquier
pariente mio varon mas cercano que estudie la
camera eclesiatica" would include indefinitely
anyone of his nearest male relatives born after
his death, he could have so specified in his will
He must have known that such a broad
provision would suspend for an unlimited
period of time the efficaciousness of his
bequest.
What then did the testator mean by "el
intervalo de tiempo que no haya legatario
acondicionado"? The reasonable view is that
he was referring to a situation whereby his
nephew living at the time of his death, who
would like to become a priest, was still in grade
school or in high school or was not yet in the
seminary. In that case, the parish priest of
Victoria would administer the ricelands before
the nephew entered the seminary. But the
51
moment the testator's nephew entered the
seminary, then he would be entitled to enjoy
Page
and administer the ricelands and receive the
fruits thereof. In that event, the trusteeship
would be terminated.
Following that interpretation of the will the
inquiry would be whether at the time Father
Rigor died in 1935 he had a nephew who was
studying for the priesthood or who had
manifested his desire to follow the
ecclesiastical career. That query is
categorically answered in paragraph 4 of
appellant priest's petitions of February 19,
1954 and January 31, 1957. He unequivocally
alleged therein that "not male relative of the
late (Father) Pascual Rigor has ever studied
for the priesthood" (pp. 25 and 35, Record on
Appeal).
Inasmuch as the testator was not survived by
any nephew who became a priest, the
unavoidable conclusion is that the bequest in
question was ineffectual or inoperative.
Therefore, the administration of the ricelands
by the parish priest of Victoria, as envisaged in
the wilt was likewise inoperative.
This case is also covered by article 912(2) of
the old Civil Code, now article 960 (2), which
provides that legal succession takes place
when the will "does not dispose of all that
belongs to the testator." There being no
substitution nor accretion as to the said
ricelands the same should be distributed
among the testator's legal heirs. The effect is
as if the testator had made no disposition as to
the said ricelands.
The Civil Code recognizes that a person may
die partly testate and partly intestate, or that
there may be mixed succession. The old rule
as to the indivisibility of the testator's win is no
longer valid. Thus, if a conditional legacy does
not take effect, there will be intestate
succession as to the property recovered by the
said legacy (Macrohon Ong Ham vs.
Saavedra, 51 Phil. 267).We find no merit in the
appeal The Appellate Court's decision is
affirmed. Costs against the petitioner.SO
ORDERED

The appellant in contending that a public

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

It should be understood that the parish priest of

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

The Court of Appeals correctly ruled that this

case is covered by article 888 of the old Civil
Code, now article 956, which provides that if
"the bequest for any reason should be
inoperative, it shall be merged into the estate,
except in cases of substitution and those in
which the right of accretion exists" ("el legado
... por qualquier causa, no tenga efecto se
refundira en la masa de la herencia, fuera de
los casos de sustitucion y derecho de
52

acrecer").
Page
 ARTICLE 791
DIZON-RIVERA VS DIZON
VDA. DE VILLANUEVA VS JUICO
DELFIN YAMBAO, plaintiff-appellant,
vs.
ANGELINA GONZALES, ET AL., defendants-
appellees.
Marcial G. Mendiola for plaintiff-appellant.
Onofre P. Guevara for defendants-appellees.
BAUTISTA ANGELO, J.:
This is an action filed by Delfin Yambao
against Angelina Gonzales and Maria Pablo
praying that the latter be ordered to appoint
and employ him as tenant during his lifetime on
the parcels of land bequeathed to and inherited
by them from Maria Gonzales, as well as to
deliver to him the value of the harvests
belonging to him as tenant of said parcels of
land. In their answer, defendants averred that
the provisions of the will relied upon by plaintiff
is not mandatory; that the determination of who
should be the tenant of the land is vested in a
special court; and that the present action is not
the proper remedy.
After trial, the court dismissed the complaint for
lack of sufficient cause of action. It held that
the provisions of the will relied upon by plaintiff
merely amount to a suggestion to the
defendants who, though morally bound, are not
legally compelled to follow said suggestion,
invoking as authority Article 797 of the old Civil
Code. Plaintiff has appealed.
The pertinent provisions of the will relied upon
by appellant read as follows:
Dapat din naman malaman ng dalawa
kong tagapagmana na sila MARIA
PABLO at ANGELINA GONZALES na
sila ay may dapat TUNGKULIN O
GANGPANAN GAYA ng mga
sumusunod:
xxx xxx xxx
(2) Pahihintulutan nila na si Delfin
Yambao ang makapagtrabajo ng bukid
habang panahon, at ang nasabing bukid
ay isasailalim ng pamamahala ng
Albasea samantalang ang bukid ay
nasa usapin at may utang pa.
It appears that on August 10, 1942, Maria
Gonzales executed a will bequeathing to
appellees all her properties situated in Sta.
Rosa, Laguna. The will was probated in 1948.
Immediately, thereafter, appellant went to
appellees to request that he be placed as
tenant of the riceland which, by an express
provision of said will, they were directed to give
to him for cultivation, as tenant, and when they
refused alleging that they had already given it
to another tenant he filed the present action.
In holding that the provisions of the will relied
upon by appellant imposes only a moral but not
a legal obligation, the trial court went on to
consider the import of the word
"Pahihintulutan" employed with reference to
appellant. In its opinion said word only means
to permit or to allow, but not to direct appellees
to appoint appellant as tenant. Rather, it
opines, it merely contains a suggestion to
employ because the testatrix did not use the
words "ipinaguutos ko" which she used in
connection with other provisions of the will, so
that there is no clear indication that it was her
intention to make such provision compulsory.
We believe, however, that the trial court has
not properly interpreted the real import of the
wish of the testatrix. Analyzing it carefully we
will find that the same contains a clear directive
to employ appellant as may be seen from the
words preceding the word "pahihintulutan",
which say: "Dapat din naman malaman ng
dalawa kong tagapagmana na sila MARIA
PABLO at ANGELINA GONZALES na sila ay
may dapat TUNGKULIN O GANGPANAN
GAYA ng mga sumusunod." The words 'dapat
TUNGKULIN O GANGPANAN" mean to do or
to carry out as a mandate or directive, and
having reference to the word "pahihintulutan",
can convey no other meaning than to impose a
duty upon appellees. To follow the
interpretation given by the trial court would be
to devoid the wish of the testatrix of its real and
true meaning.
Article 797 of the old Civil Code, invoked by the
trial court, is inapplicable. That refers to an
institution of an heir intended to be conditional
by providing that a statement to the effect
cannot be considered as a condition unless it
appears clearly that such is the intention of the
testator. We are not faced here with any
conditional institution of heirship. What we
have is a clear-cut mandate which the heirs
cannot fail to carry out.
WHEREFORE, the decision appealed from is
reversed. Appellees are hereby ordered to
employ appellant as tenant immediately after
53
this decision has become final. Costs against
appellees.
Page