WILLS AND SUCCESSION

I. CONCEPT OF SUCCESSION

Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n)

II. KINDS OF SUCCESSION:

A. TESTAMENTARY

Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n)

B. LEGAL OR INTESTATE

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 of 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. (912a)

C. MIXED

Art. 780. Mixed succession is that effected partly by will and partly by operation of law.

D. CONTRACTUAL (superseded by Art. 84 of the Family Code)

III. TESTAMENTARY SUCCESSION

A. WILLS

1. DEFINITION

Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a)

B. CHARACTERISTICS OF WILLS

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1. Purely statutory, formal

Art. 783

2. Free and voluntary

Art. 839. The will shall be disallowed in any of the following cases:

1. If the formalities required by law have not been complied with;

2. If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

3. If it was executed through force or under duress, or the influence of fear, or threats;

4. If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

5. If the signature of the testator was procured by fraud;

6. If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n)

3. Essentially revocable

Art. 828. A will may be revoked by the testator at any time before his death . Any waiver or restriction of this right is void. (737a)

4. Testator must have testamentary capacity

a. Not prohibited by law

Art. 796. All persons who are not expressly prohibited by law may make a will. (662)

b. 18 years old or over

Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)

c. Of sound and disposing mind

Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)

5. Disposition must be mortis causa

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

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VITUG VS CA 183 SCRA 755

Facts: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.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.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."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.

The trial courts 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 ... ."

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," 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.

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions in Rivera v. People's Bank and Trust Co.and Macam v. Gatmaitan in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts.

The petition is meritorious.

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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."

In other words, the bequest or device must pertain to the testator.

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., 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:

... 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.

In Macam v. Gatmaitan, 18 it was held:

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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 another conditioned upon who might die first, the time of death 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.

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.

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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.

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.

nder 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. 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.

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 separate property of petitioner, it forms no more part of the estate of the deceased.

6. Testator must have animus testandi – purpose is to transfer title via a testamentary disposition in contemplation of death, to take effect upon testator’s death.

C. INTERPRETATION OF WILLS

1. In favor of validity

Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred.

2. In case of ambiguities

Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon 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, excluding such oral declarations. (n)

a. Latent or intrinsic ambiguity – that which does not appear on the face of the will and is discovered only by extrinsic evidence;

1. When there is an imperfect description of the heir, legatee, or devisee;2. When there is an imperfect description of the gift being given;

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3. When only one recipient is designated but it turns out, there are two or more who fit the description;

b. Patent or extrinsic ambiguity – that which appears on the face of the will itself; by examining the provisions itself, it is evident that it is not clear;

How to cure ambiguities:

a. By examining the will itself;b. Extrinsic evidence such as written declarations of the testator (oral declarations not allowed

since contrary to the dead mans statute)

3. Interpretation of words

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 he was unacquainted with such technical sense. (675a)

4. Interpretation as a whole

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 is to be preferred which will prevent intestacy. (n)

5. Separability of invalid provisions

Art. 792. 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. (n)

6. After-acquired property

Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n)

7. Extent of interest covered

Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

The entire interest of the testator in the property is given, not more not less;

D. LAW GOVERNING FORM

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a. As to the time of execution

Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)

Kinds of validity

A. Extrinsic validity – refers to the forms and solemnities neededa. What must be observed is the law in force at the time the will is executed;b. What law of the land must be observed depends:

i. If the testator is a Filipino, he can observe Philippine laws; or the laws of the country where he may be; laws of the country where he executes the will;

ii. If the testator is an alien who is abroad, he can follow the law of his domicile; or his nationality; or Philippine laws; or where he executes the will;

iii. If the testator is an alien in the Philippines, he can follow the law of his nationality or the laws of the Philippines, since he executes the will here;

B. Intrinsic validity – refers to the legality of the provisions in an instrumenta. Successional rights are governed by the law in force at the TIME OF THE DECEDENT’S

DEATH;b. Laws that must be observed depends: under Philippine Law:

i. National law of the decedent; law of his country or nationality; regardless of the place of execution and the place of death;

ii. RENVOI DOCTRINE: referring back to the forum of the problem1. Where the conflict rules under the decedent’s national law refers the

matter to the law of the domicile;iii. Intestate and testamentary succession both with respect to:

1. The order of succession2. The amount of successional rights3. And the intrinsic validity of testamentary provisions

Shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property, and regardless of the country where said property may be found.

b. As to the place of execution

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

Art. 810. A person may execute a holographic will which 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. (678, 688a)

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n)

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Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides , or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another country , which is executed in accordance with the law of the country of which he is a citizen or subject , and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n)

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

E. LAW GOVERNING CONTENT

a. As to time

Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889 , by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a)

b. As to successional rights

Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated.

CAYETANO VS LEONIDES 129 SCRA 524

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.;

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As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

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

Art. 1039.

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

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law.

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

This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.

F. SOLEMNITIES OF WILLS

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a. General requirements

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

b. Specific requirements

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

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

SONOZA VS HONRADO

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

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On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix.Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment order.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her .

RULING:

We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void win should have inherited the decedent's estate.

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

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The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness.

GARCIA VS LACUESTA 90 PHIL 489

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

BALONAN VS ABELLANA 109 PHIL 358

It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten "Por la

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testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis supplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed?

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witness in the presence of the testator and of one another. (Emphasis supplied.)

Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis supplied).

Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700:

It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.

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NERA VS RIMANDO 18 PHIL 450

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

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

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions

(In the case of Jaboneta vs Gustilo:The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and mental apprehension.

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there are many cases which lay down the rule that the true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription.)

And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign.

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TABOADA VS ROSAL 118 SCRA 195

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them;

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

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It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103).

In Singson vs Florentino:

The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.

ICASIANO VS ICASIANO 11SCRA 422

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually

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prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

CAGRO VS CAGRO 92 PHIL 1032

The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negates their participation.

If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

Bautista, Angelo, dissenting:

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law — which is

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to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions — has already been accomplished. We may say the same thing in connection with the will under consideration because while the three instrumental witnesses did not sign immediately by the majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.

CRUZ VS VILLASOR 54 SCRA 31

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will.

The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For then he would be interested in sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

GABUCAN VS MANTA 95 SCRA 752

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirty-centavo documentary stamp.

The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will and, hence, according to respondent Judge, it was not admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax Code, which reads:

SEC. 238. Effect of failure to stamp taxable document. — An instrument, document, or paper which is required by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.

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No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled.

We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and cancelled."

Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)

JAVELLANA VS LEDESMA 97 PHIL 258

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect.The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law.

The issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.

1. Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884).

2. At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not

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affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses cannot be said to violate the rule that testaments should be completed without interruption. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.

CANEDA VS CA 222 SCRA 781

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate.

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved.

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Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

The attestation in the will of testator states:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.

The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.

CALDE VS CA June 27, 1994

The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent. They were also signed by three (3) attesting witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of Bontoc, Mt. Province, Br. 36. He died during the pendency of the proceedings, and was duly substituted by petitioner. Private respondents, relatives of decedent, opposed the Petitioner filed by Calde, on the

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following grounds: that the will and codicil were written in Ilocano, a dialect that decedent did not know; that decedent was mentally incapacitated to execute the two documents because of her advanced age, illness and deafness; that decedent’s thumbmarks were procured through fraud and undue influence; and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedent’s will and its codicil. The decision was appealed to and reversed by the respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code but for one crucial factor of discrepancy in the color of ink when the instrumental witnesses affixed their respective signatures.

The question in the case at bench is one of fact: whether or not, based on the evidence submitted, respondent appellate court erred in concluding that both decedent’s Last Will and Testament, and its Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule, factual findings of the Court of Appeals are considered final and conclusive, and cannot be reviewed on appeal to this court. In the present instance, however, there is reason to make an exception to that rule, since the finding of the respondent court is contrary to that of the trial court.

In the case at bench, the autoptic preference (From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference) contradicts the testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white — or more accurately, in black and blue — that more than one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioner’s claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.

Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary documents were subscribed and attested to, starting from decedent’s thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Tolete’s testimony is there any kind of explanation for the different-colored signatures on the testaments.

c. Special requirements

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

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GARCIA VS VASQUEZ 32 SCRA 489

Facts:

Two wills were executed, one during 1956, the other on 1960. Testatrix was suffering from glaucoma when the subsequent 1960 will, consisting only of one page to which the provisions were crammed, was executed. Oppositors to the will alleged that the will was secured through fraud or undue influence as when the testatrix condition may be considered as similar to that of a blind man. Likewise, they seek to oust the special administratrix for having conflict of interest for having previously bought the property of the testatrix for only 30k when it was more that 300k in value.

Court held:

Testator’s condition is similar to that of a blind man thus under Art. 808, the provisions of the will should’ve been read to her twice.

That the special administratrix is removed in so far as with respect to her interest in the testamentary succession but doesn’t invalidate the previous sale of property between her and the testatrix.

d. Substantial compliance

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n)

GIL VS MURCIANO 88 PHIL 260

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. (HIJO DE PUTA!!! DO I SPEAK SPANISH?! NO ME HABLE ESPAŇOL ESE!!!)

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 affects 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

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we to draw the line? Following that procedure we would be making interpolations by inferences, implication, and even by internal circumtantial evidence. This would be done in the face of the clear, uniquivocal, language of the statute as to how the attestation clause should be made. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For the court to supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act No. 190, before it was amended, contained the following provision:

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

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

It is 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.

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

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.)

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.)

CUEVAS VS ACHACOSO 88 PHIL 730

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the deceased instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He named

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therein his widow as executrix of the will. On February 1, 1946, Valentina Cuevas filed a petition for the probate of said will.

On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous will executed by the deceased praying therein that, if the will submitted by the widow be rejected, the other will be admitted to probate in lieu thereof. In the previous will there are other heirs instituted, among them petitioner Pilar Achacoso. Pilar Achacoso objected to the probate of the second will executed by the deceased on October 10, 1945. After due hearing, the court found that the latter will was executed in accordance with law and ordered that it be admitted to probate. Pilar Achacoso took the case to the Court of Appeals, but the latter certified it to this Court on the ground that it involves purely questions of law.

The main error assigned refers to the alleged lack of attestation clause in the will under consideration, or to the fact that, if there is such attestation clause, the same has not been signed by the instrumental witnesses, but by the testator himself, and it is claimed that this defect has the effect of invalidating the will.

The will in question, after reciting in separate paragraphs, and under correlative numbers, the provisions of the will, winds up with the following clause:

IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba, Zambales, Philippines, this 10th day of October, 1945, in the presence of the three witnesses, namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses to my signing; this testament is written in three (3) sheets marked by letter "A", "B" and "C" consecutively on top of each sheet and upon my request and in my presence and also in the presence of each of the aforesaid instrumental witnesses, they also signed this testament already reffered to.

I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well as the testament itself have been signed by me as also each of the witnesses has also signed in my presence and in the presence of each other.

(Sgd.) JOSE VENZON

Witnesses:

(Sgd.) NESTORIO TRINIDAD(Sgd.) BALDOMERO L. ACHACOSO(Sgd.) PROCESO CABAL.

The clause above quoted is the attestation clause reffered to in the law which, in our opinion, substantially complies with its requirements. The only apparent anomaly we find is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses.

"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.

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As was said in one case, "the object of the solemnities surrounding the execution of the wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this subject should be intrepreted in such a way as to attain this premordial ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded."

e. Witnesses to wills

1. Who are competent

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n)

Art. 821. The following are disqualified from being witnesses to a will:

1. Any person not domiciled in the Philippines;

2. Those who have been convicted of falsification of a document, perjury or false testimony. (n)

GONZALES VS CA 90 SCRA 183

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latters residence prior an- d up to the time of her death.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witness

In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested.

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CRUZ VS VILLASOR 54 SCRA 31

To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

f. Holographic wills

1. In general

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

2. Specific requirements

Art. 810. A person may execute a holographic will which 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. (678, 688a)

Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n)

Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)

ROXAS VS DE JESUS 134 SCRA 245

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother.

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Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which 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.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

KALAW VS RELOVA 132 SCRA 237

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

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I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895."

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature,

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G. REVOCATION OF WILLS

a. When effected

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)

b. Law governing revocation

Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

c. Modes of revocation

Art. 830. No will shall be revoked except in the following cases: 1. By implication of law; or

2. By some will, codicil, or other writing executed as provided in case of wills; or

3. By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

LIPANA VS LIPANA 70 PHIL 865

One Eliodora Lipana filed in the respondent court an application for the probate of a will supposedly executed by the deceased, Manuela Lipana, a carbon copy of which was attached to the application. Natividad Lipana filed an opposition, and her "oposicion supletoria" she claimed that evidence was unnecessary upon the facts alleged in the application, the copy of the will attached thereto showing, in itself, that the will had not been executed in accordance with law. The respondent court, after inspecting the copy of the will, dismissed the application on the ground that such copy could not be admitted to probate, it not having been signed by the testatrix and the attesting witnesses at the end thereof and on the left margin of each page. It is against this order of dismissal that the petition for certiorari has been filed with this court.

There can be no doubt that the respondent court acted in excess of its jurisdiction in rendering a judgment upon the merits of the case without a previous hearing. The pronouncement made by the respondent court that the will had not been executed in accordance with law, is founded undoubtedly

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on the erroneous assumption that the probate of the carbon copy of the will was being applied for. Such copy was attached to the application merely to corroborate the allegation as to the existence of its original and not to establish a full compliance with the requirements of the law as to the execution of the will. Such requirements are alleged in the application to have been complied with and may be proved at the hearing.

It is apparent from the application that what is sought to be admitted to probate is the original of the will. It is alleged therein that the original was in the possession of a third person or that it was either lost or destroyed by some person other than the testatrix. Under Section 623 of Act No. 190, if a will is shown to have been torn by some other person without the express direction of the testator, it may be admitted to probate, if its contents, due execution and its unauthorized destruction are established by satisfactory evidence. The applicant, therefore, was entitled to hearing to prove the due execution of the original will and its loss or destruction, and the respondent court had no statutory authority to dismiss the application without such hearing.

GAGO VS MAMUYAC 49 PHIL 902

The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac.

It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament.

Francisco Gago presented a petition for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon,

and Catalina Mamuyac. After hearing all of the parties the petition for the probation of said will was denied upon the ground

that the deceased had on the 16th day of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced to secure the probation of the said will of the 16th day of April, 1919.

To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.

The appellant contends that the lower court committed an error: in not finding from the evidence that the will in question had been executed with all the

formalities required by the law; that the same had been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging

that fact.

Held:

With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that

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such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found.

Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perish with the testator.

Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator.

MALOTO VS CA 153 SCRA 451

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto.

Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana.

Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas.

While Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed.

The will likewise gives devises and legacies to other parties.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked.

The respondent court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven.

The appellate court based its finding on the facts that: The document was not in the two safes in Adriana's residence,

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By the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and,

Her seeking the services of Atty. Palma in order to have a new will drawn up

Held:

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator.

It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.

Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations ...."

d. Doctrine of dependent relative revocation

MOLO VS MOLO 90 PHIL 37

FACTS: Mariano Molo died on January 24, 1941 without leaving any forced heir either in the descending or

ascending line.

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His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz, Gliceria and Cornelio, all surnamed Molo (oppositors-appellants).

Oppositors – appellants were the legitimate children of a deceased brother of the testator. Mariano left two wills, one executed on August 17, 1918 and another executed on June 20, 1939, In both the 1918 and 1939 wills Juana was instituted as his universal heir. The latter will contains a clause, which expressly revokes the will executed in 1918. Juana Molo filed in the CFI a petition seeking the probate of the will executed in 1939. The court rendered a decision denying the probate of said will on the ground that the petitioner

failed to prove that the same was executed in accordance with law. In view of the disallowance of the will, the widow filed another petition for the probate of the will

executed by the deceased on August 18, 1918. The oppositors filed an opposition to the petition contending that, notwithstanding the disallowance

of the 1939 will, the revocatory clause is valid and still has the effect of nullifying the prior will of 1918.

Likewise, regardless of the revocatory clause, said will of 1918 cannot still be given effect because of the presumption that the testator himself deliberately revoked it.

The will of 1918 was admitted to probate. Hence this appeal.

ISSUE:Was the admittance into probate proper?

What is the doctrine of dependent relative revocation?

HELD:

A subsequent will containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of law as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.

The doctrine of dependent relative revocation is usually applied where the testator cancels or destroys a will or executed an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails to effect for same reason.

The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will does not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will.

Even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect.

The theory on which the “principle of dependent relative revocation “ is predicated on that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on

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different occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

Doctrine of dependent relative revocation – the revocation by destruction or overt act was good only if this condition is fulfilled, namely, that the revoking will was valid. The conditioned was not fulfilled; therefore, the revocation by overt act did not really materialize.

H. INSTITUTION OF HEIRS

a. Definition

Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n)

b. If will institutes no heirs

Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764)

c. Manner of designation of heir

Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known.

Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772)

Cross-reference:

Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon 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, excluding such oral declarations. (n)

I. SUBSTITUTION OF HEIRS

a. Concept

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Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (n)

Art. 858. Substitution of heirs may be:

1. Simple or common;

2. Brief or compendious;

3. Reciprocal; or

4. Fideicommissary. (n)

1. Simple substitution

Art. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774)

2. Brief or compendious

Art. 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)

3. Reciprocal

Art. 861. If heirs instituted in unequal shares should be reciprocally substituted , the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (779a)

4. Fideicommissary

Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a)

Art. 864. A fideicommissary substitution can never burden the legitime. (782a)

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Art. 865. Every fideicommissary substitution must be expressly made in order that it may be valid.

The fiduciary shall be obliged to deliver the inheritance to the second heir , without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783)

Art. 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)

Art. 867. The following shall not take effect:

1. Fideicommissary substitutions which are not made in an express manner , either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;

2. Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863;

3. Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension;

4. Those which leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a)

Art. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786)

Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. (787a)

PCIB VS ESCOLIN 56 SCRA 266

The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for the substitute heirs.

RAMIREZ VS RAMIREZ 111 SCRA 704

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The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila , Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code;

1. The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate."

2. It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

3. They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

4. The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation. by providing that the substitution

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shall not go beyond one degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

5. There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

PEREZ VS GARCHITORENA 54 PHIL 431

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The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff.

Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount.

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction.

The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.

Issue: whether such deposit belongs to the fideicommissary heirs.

Ruling:

The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below:

Ninth. …that she may enjoy them with God's blessing and my own.

Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; …my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas;

The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance).

The illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:

1. A first heir called primarily to the enjoyment of the estate. 2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. 3. A second heir.

To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)

It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.

Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children , that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs.

Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance.

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By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara.

CRISOLOGO VS SINGSON 49 SCRA 491

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur.

Their complaint alleged that Singson owned one-half pro-indiviso of said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Dña. Leona Singson, the original owner.

Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof.

Held:

It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this manner: that upon the death of Consolacion Florentino — whether this occurs before or after that of the testatrix — the property bequeathed to her shall be delivered ("se dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die ahead of Consolacion Florentino.

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon appellee's death — whether this happens before or after that of the testatrix — her share shall belong to the brothers of the testatrix.

J. LEGITIME

1. CONCEPT

Art. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806)

2. Who are entitled

Art. 887. The following are compulsory heirs:

1. Legitimate children and descendants, with respect to their legitimate parents and ascendants;

2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

3. The widow or widower;

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4. Acknowledged natural children, and natural children by legal fiction;

5. Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a)

Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)

ROSALES VS ROSALES 148 SCRA 69

Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2) children Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner.

Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.

ISSUE:

Is a widow (surviving spouse) an intestate heir of her mother-in-law?

HELD:

Our answer to the first question is in the negative.

The surviving spouse is considered a third person as regards the estate of the parent-in-law.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation.

Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, or by the right of representation provided for in Article 981 of the same law.

Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded.

Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-in-law.

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Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the Civil Code. The aforesaid provision of law refers to the estate of the deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.

LAURO VIZCONDE VS CA

Petitioner's wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and Ricardo Nicolas, an incompetent. Antonio predeceased his parents and is now survived by his widow, Zenaida, and their four children.

Estrellita purchased from Rafael a parcel of land with an area of 10,110 sq. m. located at Valenzuela, Bulacan. Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00).

In June of the same year, Estrellita bought from Premier Homes, Inc., a parcel of land with improvements situated at Vinzon St., BF Homes, Parañaque (hereafter Parañaque property) using a portion of the proceeds of sale of the Valenzuela property. The remaining amount of the proceeds was used in buying a car while the balance was deposited in a bank.

The following year an unfortunate event in petitioner's life occurred. Estrellita and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the "Vizconde Massacre".

The findings of the investigation conducted by the NBI reveal that Estrellita died ahead of her daughters. Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his daughters . Nevertheless, petitioner entered into an "Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver of Shares", with Rafael and Salud, Estrellita's parents.

On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita instituted an intestate estate proceeding. Teresita prayed to be appointed Special Administratrix of Rafael's estate. Additionally, she sought to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent brother.

Herein private respondent Ramon filed an opposition dated March 24, 1993, praying to be appointed instead as Salud and Ricardo's guardian. Barely three weeks passed, Ramon filed another opposition alleging, among others, that Estrellita was given the Valenzuela property by Rafael which she sold for not less than Six Million Pesos (P6,000,000.00) before her gruesome murder.

On May 12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699, entitled "In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas" and averred that their legitime should come from the collation of all the properties distributed to his children by Rafael during his lifetime. Ramon stated that herein petitioner is one of Rafael's children "by right of representation as the widower of deceased legitimate daughter of Estrellita." Ramon, through a motion dated February 14, 1994, moved to include petitioner in the intestate estate proceeding and asked that the Parañaque property, as well as the car and the balance of the proceeds of the sale of the Valenzuela property, be collated.

Issue:

Whether or not the transfer of the Valenzuela property from Rafael to Estrellita and declaring the Parañaque property as subject to collation is valid.

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Held:

Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent.

The attendant facts herein do not make a case of collation. We find that the probate court, as well as respondent Court of Appeals, committed reversible errors. Petitioner, a son-in-law of Rafael, is not one of Rafael's compulsory heirs.

As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate proceedings. Such determination is provisional in character and is subject to final decision in a separate action to resolve title.

Even on the assumption that collation is appropriate in this case the probate court, nonetheless, made a reversible error in ordering collation of the Parañaque property. We note that what was transferred to Estrellita, by way of deed of sale, is the Valenzuela property. The Parañaque property which Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become collationable simply by reason thereof. Indeed, collation of the Parañaque property has no statutory basis. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Parañaque property is not one of Rafael's heirs. Thus, the probate court's order of collation against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafael's estate.

Finally, it is futile for the probate court to ascertain whether or not the Valenzuela property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value of the Valenzuela property. Hence, even assuming that the Valenzuela property may be collated collation may not be allowed as the value of the Valenzuela property has long been returned to the estate of Rafael.

BARITUA VS CA 183 SCRA 565

In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. As a result of that accident Bienvenido and his passenger died and the tricycle was damaged. No criminal case arising from the incident was ever instituted.

Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus insurer — Philippine First Insurance Company, Incorporated (PFICI for brevity) — Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI.

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On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the petitioners with the then Court of First Instance of Camarines Sur. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages.

ISSUE:

Whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial settlement between the petitioners and the victim's compulsory heirs.

HELD:

Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made.

Art 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it.

Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment.

It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.

3. Determination or computation

Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will.

To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (818a)

Art. 909. Donations given to children shall be charged to their legitime.

Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will.

Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)

Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime.

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Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. (847a)

Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows:

1. Donations shall be respected as long as the legitime can be covered , reducing or annulling, if necessary, the devises or legacies made in the will;

2. The reduction of the devises or legacies shall be pro rata, without any distinction whatever.

If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

3. If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.

The 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. (821)

Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (822)

LOCSIN VS CA 206 SCRA 383

Mariano Locsin executed a Last Will and Testament instituting his wife, Catalina, as the sole and universal heir of all his properties. The spouses being childless, had agreed that their properties, after both of them shall have died should revert to their respective sides of the family, i.e., Mariano's properties would go to his "Locsin relatives" (i.e., brothers and sisters or nephews and nieces), and those of Catalina to her "Jaucian relatives."

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Don Mariano relied on Doña Catalina to carry out the terms of their compact, hence, nine (9) years after his death, Doña Catalina began transferring, by sale, donation or assignment, Don Mariano's as well as her own, properties to their respective nephews and nieces. She made the sales and donation of properties which she had received from her husband's estate, to his Locsin nephews and nieces.

In 1989, or six (6) years after Doña Catalina's demise, some of her Jaucian nephews and nieces who had already received their legacies and hereditary shares from her estate, filed action in the Regional Trial Court of Legaspi City to recover the properties which she had conveyed to the Locsins during her lifetime, alleging that the conveyances were inofficious, without consideration, and intended solely to circumvent the laws on succession. Those who were closest to Doña Catalina did not join the action.

ISSUE:

Whether or not the nephews and nieces of Doña Catalina J. Vda. de Locsin, are entitled to inherit the properties which she had already disposed of more than ten (10) years before her death.

HELD:

They are not entitled since those properties did not form part of her hereditary estate , i.e., "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the opening of the succession."

The rights to a person's succession are transmitted from the moment of his death, and do not vest in his heirs until such time.

Property which Doña Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death to which her heirs may lay claim. Had she died intestate, only the property that remained in her estate at the time of her death devolved to her legal heirs;

Even if those transfers were, one and all, treated as donations, the right arising under certain circumstances to impugn and compel the reduction or revocation of a decedent's gifts inter vivos does not inure to the respondents since neither they nor the donees are compulsory (or forced) heirs.

Said respondents are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All that the respondents had was an expectancy that in nowise restricted her freedom to dispose of even her entire estate subject only to the limitation set forth in Art. 750, Civil Code which, even if it were breached, the respondents may not invoke:

Art. 750. The donation may comprehend all the present property of the donor or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected. (634a)

4. Freedom to dispose free portion

Art. 914. The testator may devise and bequeath the free portion as he may deem fit. (n)

K. Preterition of Compulsory Heirs

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Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a)

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. (815)

Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a)

Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a)

AZNAR VS DUNCAN 17 SCRA 590

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will which was admitted to probate.

In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased.

The Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, wherein the properties of the estate were divided equally between Lucy Duncan, whom the testator had expressly recognized in his will as his daughter and Helen Garcia, who had been judicially declared as such after his death.

The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.

Issue:

Whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.Held:

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties.

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Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons . It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.

The case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate , after which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code.

NUGUID VS NUGUID 17 SCRA 449

Rosario Nuguid, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her.

Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will on the grounds that being compulsory heirs of the deceased in the direct ascending line, they were illegally preterited and that in consequence the institution is void.

Issue:

Is the holographic will valid insofar as it preterited the compulsory heirs of the decedent?

Held:

Art. 854 provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. ...

The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they

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were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition.

Nothing in Article 854 suggests that the mere institution of a universal heir in a will — void because of preterition — would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition. On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir".

Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null.

REYES VS BARRETO-DATU 19 SCRA 85

Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate. When Bibiano Barretto died, he left his share of these properties in a will to Salud Barretto, mother

of plaintiff's wards, and Lucia Milagros Barretto and to his widow, Maria Gerardo. When Maria Gerardo died, it was discovered that she had executed two wills, in the first of which,

she instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the later will was allowed and the first rejected.

The lower court held that Salud was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.

The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: .A partition in which a person was believed to be an heir, without being so, has been included, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part.

And it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the latter's children and successors, all the Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the Philippines establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the real owner.

Held:

The legal precept (Article 1081) does not speak of children, or descendants, but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his

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testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose.

Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime invalidate the institution of Salud as heir, since there was here no preterition, or total ommission of a forced heir.

ESCUIN VS ESCUIN 11 PHIL 332

Emilio Antonio Escuin de los Santos executed a will and stated in clause three of his will, that in case he has a duly registered successor, his child would be his sole and universal heir; but that if, as would probably be the case, there should be no such heir, then in clause four he named his said father Francisco Escuin, and his wife Maria Teresa Ponce de Leon and his universal heirs, they to divide the estate in equal shares between them. His natural son was preterited;

Is the will valid?

As has been seen, the testator wish to dispose his property in his will, designating as heirs his natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, all together ignoring his recognized natural child who is general heir. In view thereof, and for the reason that he exceeded his rights, the said designation of heirs became void and so far as it impaired the right of his general heir and deprived him of his legal portions; the will, however, is valid with respect to the two-thirds of the property which the testator freely disposed of.

Notwithstanding the fact that the said designation of heirs annulled and that the law recognizes the title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his lawful and general heir, it is not proper to assert that the late Emilio Escuin de los Santos died intestate since it is clear and unquestionable that it was the wish of the testator to favor his natural father and his wife with certain portions of his property which, under the law, he had the right to dispose of by will, as he has done, provided the legal portion of his general heir was not thereby impaired, the two former persons being considered as legatees under the will.

LAJOM VS LEUTERIO (GR NO. L-13557)

Maximo Viola died on September 3, 1933. Judicial proceedings of his testate estate were instituted in the Court of First Instance.

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An agreement of partition and distribution was executed by and between Jose P. Viola, Rafael Viola and Silvio Viola, legitimate children of Maximo Viola and Juana Toura, whereby the properties left by their father, Maximo Viola, were divided among themselves.

Donato Lajom filed in the Court of First Instance a complaint praying, among other things, that he be declared a natural child of Maximo Viola, impliedly recognized and acknowledged in accordance with the laws in force prior to the Civil Code, thereby being a co-heir of Jose P. Viola, Rafael Viola and Silvio Viola; that the agreement of partition and distribution executed in 1935 by these three legitimate children of Maximo Viola be declaired null and void.

Said decision of the Court of First Instance of Nueva Ecija was, on appeal, affirmed by this Court. When Rafael Viola filed the report required in this order, Donato Lajom noticed that nothing was

said in the aforementioned report concerning the fruits of a riceland, with an area of 215 hectares, allegedly donated by Dr. Maximo Viola to said Rafael Viola. So, Lajom asked that Rafael Viola be ordered to include the products of said riceland in his report, in order that the property may be included in the redistribution of the Viola Estate.

Rafael Viola objected thereto upon the ground that said property was not "mentioned or included in the complaint filed in this case." The objection was sustained and the petition was denied.

Issue:1. Whether other properties should be collated or not open for future determination.

2. Petitioner having been the victim of preterition, the institution of heirs made by the deceased Dr. Maximo Viola became ineffective, and that Civil Case No. 8077 was thereby converted into an intestate proceedings for the settlement of his estate.

Held:1. In any event, respondent Judge was merely enforcing a decision that had already become final. Any

order directing what was not required in said decision — and the same contained no pronouncement with respect to the riceland adverted to above — would be in excess of his jurisdiction and therefore, null and void.

2. This contention is clearly untenable. There might have been merit therein if we were dealing with a special proceedings for the settlement of the testate estate of a deceased person, which, in consequence of said preterition, would thereby acquire the character of a proceeding for the settlement of an intestate estate, with jurisdiction over any and all properties of the deceased. But, Civil Case No. 8077 is an ordinary civil action, and the authority of the court having jurisdiction over the same is limited to the properties described in the pleadings, which admittedly do not include the aforementioned riceland.

BALANAY VS MARTINEZ 64 SCRA 452

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.

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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.

HELD:

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

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).

To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments. 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).

SOLANO VS CA 136 SCRA 122

Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer, SOLANO denied paternity. During the pendency of the suit, SOLANO died.

Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving heir mentioned in his Last Will and Testament.

The GARCIAS impugned the recognition of ZONIA as an acknowledged natural child with the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT.

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in declaring all of them as Adulterous Children.

ISSUE:

Is the will valid?

HELD:

The Will, therefore, is valid subject to that limitation. It is a plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of.

The case of Nuguid vs. Nuguid, et al., reiterating the ruling in Neri, et al. vs. Akutin, et al., which held that where the institution of a universal heir is null and void due to pretention, the Will is a complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no other provision except the institution of the sole and universal heir; there was no specification of individual property; there were no specific legacies or bequests.

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In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil Code, supra, applies merely annulling the "institution of heir".

ACAIN VS CA (155 SCRA 100)

Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs.

The oppositors, respondents herein Virginia A. Fernandez, a legally adopted daughter of the deceased and the latter's Widow Rosa Diongson Vda. de Acain, filed a motion to dismiss on the following grounds (1) for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. Said motion was denied by the trial judge.

Held:

It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code)

However, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

K. RESERVA TRONCAL

1. Concept

Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871)

EDROSO VS SABLAN (25 PHIL 295)

Marcelina Edroso was married to Victoriano Sablan until his death. In this marriage they had a son named Pedro, who at his father's death inherited the two said parcels. Pedro also died, unmarried and without issue and by this decease the two parcels of land passed through inheritance to his

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mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership.

Two legitimate brothers of Victoriano Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel."

Other issue: Appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to reserved.

Held:

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration — that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature property required by law to be reserved is therefore in accordance with the law.

Appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to reserved.

The case presents no testamentary provision that demonstrate any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant.

In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law could full to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says.

SIENES VS ESPACIA 1 SCRA 750

Francisco inherited a parcel of land from his father. Francisco died, single and without issue. His mother, Andrea Gutang inherited such land from Francisco, who later sold it to Constancio

Sienes. Thereafter, the sisters Paulina and Cipriana Yaeso (the Original TCT in their possession), half-sisters

of Francisco, sold the land in favor of the spouses Fidel Esparcia and Paulina Sienes. Andrea Gutang died on December 13, 1951 and the lone reservee surviving her being Cipriana

Yaeso who died only on January 13, 1952.

Issue:Whose sale was valid and should be upheld?

Held:

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The land in question was reservable property. The reserve creates two resolutory conditions, namely, (1) the death of the ascendant obliged to

reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came.

The reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista.

The reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death.

While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees — the Esparcia spouses did — not appeal therefrom.

FLORENTINO VS FLORENTINO 40 PHIL 480

Upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree. And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews.

nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. ... .

PADUARA VS BALDOVINO (L-11960, DEC. 27, 1958)

where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code.

As to the reservable property, the reservatarios do not inherit from the reservista, but from the descendant praepositus.

Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus.

The only difference in their right of succession is provided in Art. 1008, NCC in relation to Article 1006 of the New Civil Code (supra), which provisions, in effect, entitle the sole niece of full blood to a share double that of the nephews and nieces of half blood. Such distinction between whole and half blood relationships with the deceased has been recognized in Dionisia Padura, et al. vs. Melanie Baldovino, et al., No. L-11960, December 27, 1958, 104 Phil. 1065

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CHUA VS CFI (78 SCRA 412)

Jose Frias Chua, on his first marriage sired 3 children, Ignacio, Lorenzo and Manuel. When his wife died, he contracted a second marriage with Consolacion de la Torre with whom he

had a child by the name of Juanito Frias Chua. Manuel predeceased his father, having no heirs. When Jose Frias Chua died, he left no will, and has his widow, Consolacion, and children Juanito,

Lorenzo, and Ignacio as heirs. Juanito Frias Chua of the second marriage died intestate without any issue. Consolacion de la Torre died intestate leaving no direct heir either in the descending or ascending

line except her brother and sisters. Lorenzo and Ignacio filed a complaint to declare as reservable property the portion of a lot that

Consolacion received from Juanito upon his death.

Held:

In order that a property may be impressed with a reservable character the following requisites must exist, to wit:

1. that the property was acquired by a descendant from an asscendant or from a brother or sister by gratuitous title;

2. that said descendant died without an issue; 3. that the property is inherited by another ascendant by operation of law; and 4. that there are relatives within the third degree belonging to the line from which said property

came.

Juanito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein.

As explained by Manresa which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return;

“The essential thing is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation.” It is evident from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous.

GONZALES VS CFI (104 SCRA 479)

Can a reservista convey by will, reservable property to reservatarios in the third degree and by-pass those in the second?

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Held:

NO. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus.

She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.

The reservable property does not form part of the reservista’s estate and should be given to all the seven reservatarios or nearest relatives of the prepositus within the third degree. While it is true that by giving the reservable property to only one reservatario, it did not pass into the hands of strangers, nevertheless, it is likewise true that the reservista was only one of the reservatarios and there is no reason founded upon law and justice why the other reservatarios should be deprived of their shares in the reservable property. The property passes by strict operation of law.

DE PAPA VS CAMACHO 144 SCRA 281

Plaintiffs and defendant were all relatives within third degree of the praepositus.

Issue:

Whether, all relatives of the praepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista or, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession.

Held:

Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter.

To this effect is Abellana vs. Ferraris where Arts. 1001, 1004, 1005 and 1009 of the Civil Code were cited and applied:

Nevertheless, the trial court was correct when it held that, in case of intestacy nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the PhilippinesArt. 1009. Should there be neither brothers nor sisters, nor children of brothers and sisters, the other collateral relatives

shall succeed to the estate.

Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession.

We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. ...

SUMAYA VS IAC 20 SCRA 178

Raul inherited 1/3 of a parcel of land from his father and 1/7 of 10 parcels of land from his maternal grandmother.

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He died single and without issue.His mother adjudicated to herself Raul’s properties. Thereafter, she sold these properties which later came into the hands of petitioners.Raul’s brothers and his nephews and niece from a deceased bother now claims the property by virtue of reserve troncal.

Issue:

Are petitioners innocent purchasers for value?

Held:

No, the fact remains however, that the affidavit of self-adjudication executed by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which provides:

Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. — Every conveyance, mortgage, lease, lien attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering.

Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also.

This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned . . ." (emphasis supplied)

The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the reserved property during the lifetime of the reservor.

L. RESERVA ADOPTIVA (Art. 39, P.D. 603)

Article 39. Effects of Adoption. - The adoption shall:

1. Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption;

2. Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent;

3. Entitle the adopted person to use the adopter's surname; and

4. Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally,

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That in the last case, should the adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive one-fourth and the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code.

The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him , except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or interstate.

BANAWA VS MIRANO 97 SCRA 517

Maria Mirano received by way of donation inter-vivos parcels of land from Doroteo Banawa and her aunt, Juliana Mendoza.

Maria was never judially adopted. She died with no issue.

Held:

Section 5, Rule 100 of the Old Rules of Court, the pertinent portion of which reads:

... In case of the death of the child, his parents and relatives by nature, and not by adoption, shall be his legal heirs, except as to property received or inherited by the adopted child from either of his parents by adoption, which shall become the property of the latter or their legitimate relatives who shall participate in the order established by the Civil Code for intestate estates.

The submission of the petitioners is that extrajudicial adoption is within the contemplation and spirit of this rule of reversion adoptive. However, the rule involved specifically provides for the case of the judicially adopted child. It is an elementary rule of construction that when the language of the law is clear and unequivocal, the law must be taken to mean exactly what it says.

TEOTICO VS DEL VAL 13 SCRA 406

Deceased executed a will naming as heirs her niece and the latter’s husband and her grandchildren.Appellant opposed the probate, claiming to be an adopted child of the deceased sister and an illegitimate child of the deceased’s bother.

Issue:Is she entitled to claim as an illegitimate daughter of the brother of the testatrix or as an adopted daughter of the testatrix sister?

Held:

No, Article 992 of our Civil Code provides: "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; ... ."

Likewise, the oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera because under our law the relationship established by adoption is limited solely to the adopter and the adopted and does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no

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relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.

M. DISINHERITANCE

Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime , for causes expressly stated by law. (848a)

Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)

Art. 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850)

Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a)

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

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

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

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

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

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

(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. (756, 853, 674a)

Art. 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate:

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1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;

2. When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

3. When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false;

4. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;

5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

6. The loss of parental authority for causes specified in this Code;

7. The refusal to support the children or descendants without justifiable cause;

8. An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a)

Art. 921. The following shall be sufficient causes for disinheriting a spouse:

(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants;

(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;

(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;

(4) When the spouse has given cause for legal separation;

(5) When the spouse has given grounds for the loss of parental authority;

(6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)

Art. 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)

Art. 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the

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disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857)

N. LEGACIES AND DEVISES

Art. 957. The legacy or devise shall be without effect:

1. If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;

2. If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

3. If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of Article 928. (869a)

FERNANDEZ VS DEMAGIBA (L-23638, OCT. 12, 1967)

In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament, rather than an alteration or departure therefrom.

Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply to the case at bar.

Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of the 1943 and 1944 conveyances.

If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy.

BELEN VS BPI (109 PHIL 1008)

Unquestionably, the testator was at liberty to provide a series of successive substitutions in the order of proximity of relationship to the original legatee. And he, likewise, was free to ordain that the more distant descendants should enjoy the right of representation as in intestate succession.

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