succession cases art.820-870

7/27/2019 Succession Cases Art.820-870

http://slidepdf.com/reader/full/succession-cases-art820-870 1/28

G.R. No. 40445 In re estate of the deceased Leonarda Macam y Capili. NICOLASA MACAM, petitioner-appellant, vs.JUANA GATMAITAN, oppositor-appellant.

This case comprises two appeals, one taken by the petitioner Nicolasa Macam and the other by the oppositor Juana Gatmaitan, from an order of the Court of First Instan

Bulacan, the dispositive part of which reads as follows:

In view of the neglect or abandonment by the interested parties of their claims during the proceedings for the probate of the will, and it appearing that the was alr

become final and it appearing that the order allowing the will has already become final and executory, the court is of the opinion that it is now too late to consider the so-c

codicil as well as the instrument from which Juana Gatmaitan derives her alleged right.

Wherefore, the petition for the probate of the codicil as well as the opposition thereto filed by Juana Gatmaitan is dismissed, without prejudice to whatever right the

may have in an appropriate proceeding before the committee on claims and appraisal, in accordance with law. So ordered.

In support of her appeal, the petitioner Nicolasa Macam assigns the following alleged errors as having been committed by the trial court in said decision, to wit:

1. The lower court erred in holding that the parties have abandoned their respective claims during the proceedings for the probate of the will.

2. The lower court erred in declaring that it was already too late to raise the question as to the legal efficacy of the codicil executed by the deceased.

3. The lower court erred in dismissing the petition for the probate of the codicil before any of the parties had presented evidence pertinent to the matter.

The oppositor Juana Gatmaitan, in turn, assigns the following alleged errors as having been committed by the court a quo in said decision, to wit:

1. The lower court erred in holding that in order for Juana Gatmaitan to preserve her rights, so far as to oppose the probate of the codicil, it was her duty to oppose t

probate of the will; and, having opposed the probate only of the codicil, she could no longer avail herself of the document in her favor, so as to affect the testam

dispositions of the deceased Leonarda Macam.

2. The lower court erred in dismissing the opposition of Juana Gatmaitan to the probate of the alleged codicil.

The appellants assignments of error, considered together, raise the following questions of law:

1. Is the probate of a will by final judgment prior to that of a codicil thereof bar to the probate of said codicil?

2. Does the failure to the file opposition to the probate of a will constitute a bar to the presentation of the codicil for probate?

The following pertinent facts, which are disclosed by the pleadings, are necessary for the resolution of the questions raised in this appeal.

On March 27, 1933, Nicolasa Macam filed in the Court of First Instance of Bulacan a petition for the probate of the will dated July 12, 1932, and of the codicil thereof

February 17, 1933, executed by Leonarda Macam who died on March 18, 1933, in the municipality of Calumpit, of said Province of Bulacan, and for her appointme

executrix without bond.

When the petition was called for hearing on April 24, 1933, in the absence of the judge, the clerk of the Court of First Instance of Bulacan, upon instructions of said ju

proceed to take the evidence in the absence of any opposition, took the evidence relative to the probate of the will, no opposition to the same having been filed. Inasmu

Juana Gatmaitan filed opposition to the probate of the codicil, said clerk deemed himself unauthorized to take the evidence relative thereto and refrained from so doing.

The will and the evidence for its probate having been submitted to the court the vacation Judge Hon. M. Rosauro, on April 28, 1933, entered an order allowing said wappointing the petitioner Nicolasa Macam as executrix.

On July 6, 1933, after notice to the parties, the codicil was called for hearing, opposition having been filed by Juana Gatmaitan, one of the legatees instituted in the will

had already been allowed by final and executory judgment. After hearing counsel for the respective parties, Judge Francisco Enage, then presiding over the Court o

Instance of Bulacan, entered the order the dispositive part of which has been quoted at the beginning of this decision.

Section 625 of the Code of Civil Procedure provides as follows:

SEC. 625. Allowance necessary, and conclusive as to execution.-No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Ins

or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution.

Interpreting the above legal provisions as regards the scope of the allowance of a will, this court, in numerous decisions, has laid down the doctrine that the probate of a

conclusive as to its due execution and as to the testamentary capacity of the testator, but not as to the validity of its provisions, and in probate proceedings the court

without jurisdiction to determine questions concerning the validity of the provisions of the will. (Castañeda vs. Alemany, 3 Phil. 426; Pimentel vs. Palanca, 5 Phil. 436; Lim

vs. Ganara, 11 Phil. 393; Austria vs. Ventenilla, 21 Phil. 180; In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105.)

A codicil is a written instrument wherein one declares his last will, in order to take from or add something to the will, or clarify the provisions thereof. (Spanish Cycloped

Law, vol. 5, page 918.)

A codicil has been defined as some addition to or qualification of one’s last will and testament. (28 R. C. L., 197.)

The exercise of the right to make a will, as a voluntary act, implies the right to revoke, and article 737 of the Civil Code expressly provides that wills are essentially revoc

provided that the partial or total revocation is made with the formalities required for making it, in accordance with the provisions of article 738 of the same Code.

The fact that a will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation and probate

codicil, provided it complies with all the necessary formalities for executing a will required by section 614 of the Code of Civil Procedure, as amended by section 1 of A

1934.

It is not necessary that the will and the codicil be probated together, as the codicil may be concealed by an interested party and it may not be discovered until after the w

already been allowed; and they may be presented and probated one after the other (40 Cyc., 1228), since the purpose of the probate proceedings is merely to dete

whether or not the will and the codicil meet all the statutory requirements for their extrinsic validity, leaving the validity of their provisions for further consideration.



The appeal taken by the petitioner Nicolasa Macam is, therefore, well founded and the court a quo erred in flatly, denying her petition for the probate of the codicil o

erroneous ground that said codicil should have been presented at the same time as the will.

With respect to the opposition of the oppositor-appellant Juana Gatmaitan, the fact that she failed to file opposition to the probate of the will does not prevent her from

opposition to the probate of the codicil thereof, inasmuch as the will may satisfy all the external requisites necessary for its validity, but the codicil may, at the time

execution, not be in conformity therewith. If the testator had testamentary capacity at the time of the execution of the will, and the will was executed in accordance w

the statutory requirements, opposition to its probate would not lie. On the contrary, if at the time of the execution of the codicil the testator lacked some of the subj

requisites legally capacitating him to execute the same, or all the statutory requirements were not complied with in the execution thereof, opposition to its probate would

The court a quo, therefore, erred in dismissing the opposition filed by the oppositor-appellant Juana Gatmaitan to the probate of the codicil of the will of the dec

Leonarda Macam.

In view of the foregoing, we are of the opinion and so hold: (1) That the fact that a will has been probated and the order allowing the same has become final and execut

not a bar to the presentation and probate of a codicil, although its existence was known at the time of the probate of the will; (2) that the failure of the oppositor t

probate of a codicil to file opposition to the probate of the will, having knowledge of such proceedings, does not constitute an abandonment of a right, nor does it deprivof the right to oppose the probate of said codicil.

Wherefore, the order appealed from is reversed and it is ordered that the petition for the probate of the codicil filed by the petitioner Nicolasa Macam, as well a

opposition to said probate filed by the oppositor Juana Gatmaitan, be reinstated, without special pronouncement as to costs. So ordered.

Malcolm, Imperial, Butte and Goddard, JJ., concur.

G.R. No. 76464 February 29, 1988 TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had already

decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling th

more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the

Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petitio

review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court, after he

found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision t

Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, h

this petition.

For a better understanding of the controversy, a factual account would be a great help.

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

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 int

proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No.

However, while the case was still in progress, or to be exact on February 1, 1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreem

extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presente

extrajudicial settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy

unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document en

"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 foun

testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to the off

the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constanci

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 e

signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purific

Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconside

and annulment of the proceedings therein and for the allowance of the will When the trial court denied their motion, the petitioner came to us by way of a petitio

certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for the probate

alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guad

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 th

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 doc

was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, an

seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collective

sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.

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

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 ex

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

distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established accord

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 an

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 und

express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revoc

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 bu

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

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 le

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 pres

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 wthe papers proffered as a will were burned.

The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the testimony of the

witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that th

witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we

believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the b

document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied legalization on dubious grounds. Otherwise, th

institution of testamentary succession will be shaken to its very foundations ...." 4

The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already barred by res adjud

They claim that this bar was brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the intestate proce

(Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the last w

testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following requisites must concur: (

presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgme

judgment on the merits; and (4) there is, between the first and the second action, Identity of parties, of subject matter, and of cause of action. 5 We do not find he

presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in S

Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be

with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandab

because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After all, an action for probate, as it imp

founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settleme

estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no Identity between the cause of action in intestate proce

and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners institute

separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained

One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in the wbeen disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have

acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are extraneous t

special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respo

Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private respondents.

[G.R. No. 78778 : December 3, 1990.] 191 SCRA 814LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO BUENASEDA and JOVITA MONTEFALCON, Petitioners, vs. THE COURT OF APPEALS and JBUENO ALBOVIAS, Respondents.

This is a petition for review on certiorari seeking to reverse the decision* of the respondent appellate court dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana (Bu

Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower court, the decretal portion of which reads:: nad

"WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring Leonida Coronado to have no title or interest over the property in question, hence, has no authority to dispose of the same in favor of her co-defendants;

2. Declaring the sales executed by Coronado and subsequent transactions involving the same property null and void ab initio;

3. Declaring the plaintiff to be the true and legal owner of the subject parcel of land;

4. Ordering the defendants to vacate the subject premises and to surrender possession thereof unto the plaintiff;

5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum of P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary damages.

Costs against the defendants." (Rollo, p. 17)

As found by the respondent appellate court, the property subject of this case is a parcel of land situated in Nagcarlan, Laguna, containing 277 square meters, more partic

described as follows:: nad



"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of Laguna. Bounded on the North, by property of Epifania Irlandez (formerly Bon

Formentera); on the East, by that of Julio Lopez; on the South, by that of Dalmacio Monterola (formerly Domingo Bueno); and on the West, by C. Lirio Street. Contain

area of two hundred seventy seven (277) square meters, more or less. Assessed at P3,320.00 under tax declaration No. 241." (Ibid., p. 15)

Said parcel of land is being contested by Juana Albovias, herein private respondent, on the one hand, and Leonida-Coronado, Felix Bueno, Melania Retizos, Berna

Buenseda and Jovita Montefalcon, herein petitioners, on the other hand.

Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a bigger lot referred to as Parcel G in the last will and testament executed in 19

Melecio Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by JUANA, her brother Domingo Bueno, and two other grandchildren, namely Bonifac

Herminigildo, both surnamed Formentera. Parcel G is described as follows:

"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman ay may tanim na saguing, tumatayo sa gawin Canloran ng Calle Avenida Rizal n

Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique Jovellano; sa Ilaya, sa namatay na Perfecto Nanagas, at sa Canloran, tub

pinamamagatang San Cido." (Ibid., p. 16)

JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the Municipality of Nagcarla traversing said Parcel G and thus dividing it into two por

one on the west of C. Lirio St. and the other to the east of said street. Parcel G was divided by the heirs in the following manner; the land was divided into two portion

northern portion of which was adjudicated in favor of the Formenteras and the southern portion was given to JUANA and Doming Bueno. The southern portion in tur

partitioned between JUANA and Domingo Bueno, the former getting the northern part adjoining the lot of the Formenteras, and the latter the southern part which adjoi

lot of Perfecto Nanagas (not owned by Dalmacio Monterola). The part allocated to Domingo was later sold by him to Dalmacio Monterola, owner of the adjoining pro

(Ibid.).: nad

Moreover, JUANA claims that her property was included together with the two parcels of land owned by Dalmacio Monterola, which were sold by Monterola's success

interest Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18, 1970. Melania Retizos in turn sold the lots, including that one being claimed by JU

to the spouse Bernardino Buenaseda and Jovita Montefalcon, now the present possessors thereof, sometime in 1974 (Ibid., pp. 16-17).

On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity) claim that the property in question was bequeathed to Leonida Coronado under

executed by Dr. Dalmacio Monterola, who was allegedly in possession thereof even before the outbreak of World War II (Ibid., p. 107).

Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate Estate of the Deceased Monterola Leonida F. Coronado, petitioner (Ibid., p. 105). JUtogether with her husband, opposed the said probate. Despite their opposition, however, the Will was allowed by the then Court of First Instance of Laguna, Sta. Cruz B

(Ibid., p. 106). On appeal, said decision was affirmed by the Court of Appeals in CA-G.R. No. 40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr. Dal

Monterola, oppositors-appellants" (Ibid.). It is not apparent, however, from the record whether or not said decision has already become final and executory.

As a result of the conflicting claims over the property in question, JUANA filed an action for quieting of title, declaratory relief and damages against CORONADO in the Re

Trial Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as Civil Case No. 7345 (Ibid., p. 4).

As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.

Not satisfied with the decision of the lower court, CORONADO elevated the case to the Court of Appeals, which affirmed the decision appealed from (Ibid., p. 20). Henc

petition.:-cralaw

As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid., p. 105); while that of JUANA was filed on October 13, 1989 (Ibid., p. 139).

The petition is devoid of merit.

Under the first assigned error, CORONADO assails the respondent appellate court's finding that Dr. Dalmacio Monterola could not have acquired the subject land by acqu

prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41 of the Code of Civil Procedure, CORONADO claims that JUANA had already foreclosed wha

right or legal title she had over the property in question, the reason being that Monterola's continued possession of the said property for over ten years since 1934 ripene

full and absolute ownership (Ibid., p. 112).

The argument has no factual basis.

Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the erro

law imputed to it, its findings of fact being conclusive. It is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being li

to reviewing errors of law that might have been committed. Absent, therefore, a showing that the findings complained of are totally devoid of support in the record, so

they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand, for the Supreme Court is not expected or required to examine or con

the oral and documentary evidence submitted by the parties (Andres v. Manufacturers Hanover & Trust Corporation, G.R. 82670, September 15, 1989). There a

convincing reasons in the instant case to depart from this rule.

As found by the respondent appellate court, Monterola never claimed ownership over the property in question. As a matter of fact, one of the deeds of donation execut

Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the property conveyed to her is JUANA. This is precisely the reason why during the lif

of the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the benefits or produce of the said property. It was only after the death of said Mont

in 1970 that Leonida Coronado prohibited JUANA from entering it (Ibid., p. 18).:- nad

Even assuming arguendo that Monterola was indeed in continued possession of the said property for over ten years since 1934, said possession is insufficient to constitu

fundamental basis of the prescription. Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be possession under claim of tit

concepto de dueno), or to use the common law equivalent of the term, it must be adverse. Acts of possessory character performed by one who holds by mere tolerance o

owner are clearly not en concepto de dueno, and such possessory acts, no matter how long so continued, do not start the running of the period of prescription (Manila El

Company v. Intermediate Appellate Court, G.R. 71393, June 28, 1989).

In this case, Monterola, as found by the respondent appellate court and the lower court, never categorically claimed ownership over the property in question, much le

possession thereof en concepto de dueno. Accordingly, he could not have acquired said property by acquisitive prescription.

Anent the contention of CORONADO that Leonida Coronado could tack her possession to that of Monterola, so that claim of legal title or ownership over the subject pro

even against the petitioners, the Buenasesas, who are purchasers for value and in good faith, is a foregone or settled issue, the respondent appellate court aptly answere

same in this wise:



"It follows that Leonida Coronado could not have derived ownership of the land in question from her predecessor-in-interest Dalmacio Monterola, whether by prescript

by some other title. Neither can she claim acquisitive prescription in her own name. It was only in 1970 after the death of Dalmacio Monterola that she asserted her cla

ownership adverse to that of plaintiff-appellee. Having knowledge that she had no title over the land in question, she must be deemed to have claimed it in bad faith. U

Article 1137 of the Civil Code, ownership and other real rights over immovables prescribe through uninterrupted adverse possession thereof for thirty years, without ne

title or good faith. And even granting that she had no notice or defect in her title and was, therefore, in good faith, a period of ten years of possession is necessary for

acquire the land by ordinary prescription. (Article 1134, Civil Code). But she can claim to have possessed the land only in 1968, the year the Monterola lots were donat

her. The period, however, was interrupted in 1975, or 7 years after, when the complaint below was filed." (Rollo, pp. 18-19)

Under the second assigned error, CORONADO claims that the will under which JUANA inherited the property in question from her grandfather, Melecio Artiaga, was

probated; hence, said transfer for ownership was ineffectual considering that under Rule 75, Sec. 1 of the Rules of Court (formerly Sec. 125 of Act No. 190, no will sha

either real or personal property unless it is proved and allowed in the proper court (Ibid., p. 115).

The contention is without merit.chanrobles virtual law library

While it is true that no will shall pass either real or personal property unless it is proved and allowed in the proper court (Art. 838, Civil Code), the questioned will, howmay be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at the time said document was executed by Melecio Artiaga in 1918. The said a

read as follows:

"Article 1056. If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legiti

the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])

In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to legitime from Melecio Artiaga. The truth of the matter is that the record is bereft o

showing that Leonida Coronado and the late Melecio Artiaga were related to each other.

Under the third assigned error, CORONADO claims that JUANA is estopped from questioning the ownership of Leonida Coronado over the land in question having failed to

the same in the estate proceedings in the trial court and even on appeal (Rollo, p. 119).

The contention is likewise without merit.

Normally, the probate of a will does not look into its intrinsic validity. The authentication of a will decides no other questions than such as touch upon the capacity otestator and the compliance with those requisites or solemnities which the law prescribes for the validity of the wills. It does not determine nor even by implication pre

the validity or efficiency of the provisions of the will, thus may be impugned as being vicious or null, notwithstanding its authentication. The question relating to these

remain entirely unaffected, and may be raised even after the will has been authenticated (Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUA

not estopped from questioning the ownership of the property in question, notwithstanding her having objected to the probate of the will executed by Monterola under

Leonida Coronado is claiming title to the said property.:-cralaw

Under the fourth assigned error, it is alleged by CORONADO that JUANA's petition is weak for want of factual and legal support; the weakness of JUANA's position lies

fact that she did not only fail to identify the subject land, but also failed to explain the discrepancy in the boundary of the property she is claiming to be hers (Rollo, p. 125)

The contention is unavailing.

The fact that JUANA failed to identify the property in question and to explain the discrepancy in the boundary of said property, assuming they are true, is immaterial, in vi

the findings of the lower court as to the identity of the property in question. Moreover, the lower court found sufficient evidence to support the conclusion that the prope

question is the same property adjudicated to JUANA under the will of Melecio Artiaga, and that CORONADO has no right whatsoever to said property (Ibid., p. 20)

findings are conclusive upon this Court (Reynolds Philippine Corporation v. Court of Appeals, 169 SCRA 220 [1989]).

PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.

G.R. No. 24168 September 22, 1925FLORENCIO MANALO, as guardian of the minors Lazaro Mendieta and Daria Mendieta, petitioner,Honorable ISIDRO PAREDES, Judge of First Instance of Laguna, and PHILIPPINE FOOD COMPANY, respondents.

This is a proceeding for mandamus commenced originally in this court by Florencio Manalo, as guardian of the minors Lazaro and Daria Mendieta, for the issuance of a w

mandamus addressed to the Honorable Isidro Paredes, Judge of the Court of First Instance of Laguna, and the Philippine Food Co., ordering the publication of the petiti

the probate of the will of the deceased Francisco Villegas, case No. 4217 of the Court of First Instance of Laguna; and injunction commanding the respondent judge, Hon

Isidro Paredes, to suspend the proceedings in the registration case No. 954 of the Court of First Instance of Laguna, wherein the Philippine Food Co. is the applicant an

minors Lazaro and Daria Mendieta opponents, until the termination of the proceeding for the probate of the will of Francisco Villegas, in which said minors are named leg

of the land involved in said registration case.

On March 22, 1924, Laureana Hidalgo, surviving spouse of Francisco Villegas, filed with the Court of First Instance of Laguna an application for letters of administration o

estate left by her deceased husband, who, according to the application, died intestate (rec. No. 4031, file 1, of the Court of First Instance of Laguna).

In the course of said administration and on May 5, 1924, Justina Mendieta, Lazaro Mendieta, Daria Mendieta and Melecio Fule, supposed testamentary executor, through

attorney, Mr. Eusebio Lopez, filed a motion with the court, praying for the probate of the supposed will of Francisco Villegas, wherein most of his property was given

legacy to said Justina Mendieta, the latter's children and the legitimate wife of the deceased Francisco Villegas (rec. No. 4031, file 1. fol. 47).

On August 8, 1924, Messrs. E.M. Lopez and V.F. Reyes, attorneys, on behalf of the executor Melecio Fule, filed a motion (Exhibit 3) wherein they stated that the att

witnesses, Exequiel Evidente and Albino Villegas, had assured them that the supposed will had not been executed by Francisco Villegas in accordance with law, and tha

executor Melecio Fule no longer took interest in the case (rec. No. 4031, fol. 116).

On June 5, 1924, having received an order of the court requiring her to produce the supposed will of Francisco Villegas, Justina Mendieta filed a motion wherein, among

things, she said:

That having learned of the aforesaid order of this court, I hereby freely and spontaneously state that I know not of any will executed by the deceased Francisco Villegas,

the one that I had had said deceased Francisco Villegas sign on January 18, 1924, which he signed at my request and inducement in order that my children begotten b

might have a share in his estate, as said deceased did in fact sign said will only in my presence and compelled by the pressure exerted by me and for my aforesaid chi

(Rec. No. 4031, file 1, fol. 70.)



Notwithstanding the foregoing motions, the court, on September 3, 1924, ordered the publication in the newspaper El Debate, of Manila, of the application of Meleci

and of Justina Mendieta, Lazaro Mendieta, and Daria Mendieta for the probate of the supposed will of the deceased Francisco Villegas, setting said application for heari

the 3rd day of October, 1924 (rec. No. 4031, file 1, fol. 192).

On September 5, 1924, Justina Mendieta, together with her children Lazaro Mendieta and Daria Mendieta, filed another application for the probate of the same will th

their attorneys, Messrs. Azada and Veluz (rec. No. 4031, file 1, fol. 199), and on October 13, 1924, the same attorneys and Attorney Marcelino Lontok, on behalf of Ju

Mendieta and her minor children, filed a motion for the appointment of a guardian ad litem for said minors (rec. No. 4031, file 2, fol. 117).

At the trial which was held October 16, 1924, the court below appointed Justina Mendieta, natural mother of said minors, as their guardian ad litem. Laureana Hidalgo en

her objection to the probate of the will (rec. No. 4031, file 2, fol. 136) and immediately the court proceeded to hear the evidence of the parties, each and everyone o

attesting witnesses of the supposed will, named Tomas Dizon, Albino Villegas, and Exequiel Evidente having testified, and the applicants having introduced Exhibits A, B, C

F, G, H, I, J, K, L, M, and N and the opponent Exhibits 1, 2, 3, and 4, the trial having been suspended thereafter, to be continued on October 24, 1924.

When the case was filed on October 24, 1924, for the continuation of the trial, Justina Mendieta, for herself and in her capacity as guardian ad litem of her minor chi

Lazaro Mendieta and Daria Mendieta, represented by their attorneys, Messrs. Marcelino Lontok and Marcial Azada, on the one hand, and Laureana Hidalgo, represenher attorney, Mr. J.E. Blanco, on the other, submitted to the court an agreement wherein Justina Mendieta stated that she withdrew her application for the probate o

supposed will of the deceased Francisco Villegas on the ground that the evidence was insufficient to justify the probate of said will, and consequently, she prayed that sa

be held not allowable to probate and that the deceased died intestate, without leaving any more heirs than his legitimate wife, Laureana Hidalgo, and his two adult

children, Lazaro and Daria Mendieta, and that the property of the deceased be distributed in accordance with said agreement (rec. No. 4031, file 2, fol. 171).

By an order dated October 25, 1924, the court approved said stipulation and rendered judgment, holding that the supposed will of Francisco Villegas could not be prob

and awarding to the heirs of the deceased the estate left by Francisco Villegas in accordance with said agreement (rec. No. 4031, file 2, fol. 173). From this order no appea

been taken.

On January 7, 1925, one Gelacio Malihan, who claimed to be first cousin of the deceased Francisco Villegas, filed with the court a new application for the probate of the

supposed will of the deceased Francisco Villegas (rec. No. 4217).

As may be seen from the facts above stated, the will, the probate of which is applied for in the petition dated January 7, 1925, is the same one that was the subject

application of May 5, 1924, and of September 5, 1924. The only difference lies in that the first application was filed by Justina Mendieta and her minor children L

Mendieta and Daria Mendieta and Melecio Fule, supposed testamentary executor, all represented by the attorney, Mr. Eusebio M. Lopez; the second by Justina Mendiether minor children Lazaro Mendieta and Daria Mendieta, represented by the attorneys Messrs. Azada and Veluz; and the third and last by one Gelacio Malihan who claim

be first cousin of the deceased Francisco Villegas.

The proceeding for the probate of a will is a proceeding in rem (40 Cyc., p. 1265), and the court acquires jurisdiction over all the persons interested through the publicati

the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered is binding against all of them. Through the publication ordered b

Court of First Instance of Laguna of the application for the probate of the supposed will of Francisco Villegas, filed by Justina Mendieta and her minor children Lazaro and

Mendieta and Melecio Fule, testamentary executor, through their attorney, Mr. Eusebio Lopez, said court acquired jurisdiction over all such persons as were interested

supposed will, including Gelacio Malihan. The court having tried said application for probate, hearing all the testimony of the attesting witnesses of the said supposed wi

applicant Justina Mendieta for herself and as guardian ad litem of her minor children, represented by their attorneys, Messrs. Marcelino Lontok and Marcial Azada, on th

hand, and Laureana Hidalgo, widow of Francisco Villegas, represented by her attorney, Jesus. E. Blanco, on the other, having submitted a stipulation wherein the f

withdrew her application and the latter reserved certain rights over the estate left by Francisco Villegas in favor of Justina Mendieta and her minor children; and the

having approved said stipulation and declared that Francisco Villegas died intestate according to said agreement, all the parties became bound by said judgment; and if a

them or other persons interested were not satisfied with the court's decision, they had the remedy of appeal to correct any injustice that might have been committed

cannot now through the special remedy of mandamus, obtain a review of the proceeding upon a new application for the probate of the same will in order to compe

respondent judge to comply with his ministerial duty imposed by section 330 of the Code of Civil Procedure; because this remedy, being extraordinary, cannot be used in

appeal, or writ of error (26 Cyc., 177; 18 R.C.L., par. 443); especially when the parties interested have agreed to disregard the testamentary provisions and divide the estathey pleased, each of them taking what pertained to him (25 R.C.L., 359).

The first ground of the petition for mandamus is a consequence of the second and we need not deal with it.

As to the motion of the petitioner that the record of the proceeding be transmitted to the Attorney-General for investigation, in order to discover any irregularity or frau

may have been committed, and to institute the proper proceeding against those who may be found guilty, this court will take no action unless specific charges are filed.

G.R. No. 1439 March 19, 1904ANTONIO CASTAÑEDA, plaintiff-appellee,JOSE E. ALEMANY, defendant-appellant.

The grounds upon which a will may be disallowed are limited to those mentioned in section 634 of the Code of Civil Procedure.

WILLARD, J.:

(1) The evidence in this case shows to our satisfaction that the will of Doña Juana Moreno was duly signed by herself in the presence of three witnesses, who signed

witnesses in the presence of the testratrix and of each other. It was therefore executed in conformity with law.

There is nothing in the language of section 618 of the Code of Civil Procedure which supports the claim of the appellants that the will must be written by the testator him

by someone else in his presence and under his express direction. That section requires (1) that the will be in writing and (2) either that the testator sign it himself or, if he

sign it, that it be signed by some one in his presence and by his express direction. Who does the mechanical work of writing the will is a matter of indifference. Th

therefore, that in this case the will was typewritten in the office of the lawyer for the testratrix is of no consequence. The English text of section 618 is very plain. The mi

in translation found in the first Spanish edition of the code have been corrected in the second.

(2) To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a con

to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines an

determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain leg

void and another one valid. It could not in this case make any decision upon the question whether the testratrix had the power to appoint by will a guardian for the prope

her children by her first husband, or whether the person so appointed was or was not a suitable person to discharge such trust.

All such questions must be decided in some other proceeding. The grounds on which a will may be disallowed are stated the section 634. Unless one of those grounds apthe will must be allowed. They all have to do with the personal condition of the testator at the time of its execution and the formalities connected therewith. It follow



neither this court nor the court below has any jurisdiction in his proceedings to pass upon the questions raised by the appellants by the assignment of error relating t

appointment of a guardian for the children of the deceased.

It is claimed by the appellants that there was no testimony in the court below to show that the will executed by the deceased was the same will presented to the cou

concerning which this hearing was had. It is true that the evidence does not show that the document in court was presented to the witnesses and identified by them, as s

have been done. But we think that we are justified in saying that it was assumed by all the parties during the trial in the court below that the will about which the witn

were testifying was the document then in court. No suggestion of any kind was then made by the counsel for the appellants that it was not the same instrument. In th

question put to the witness Gonzales the phrase "this will" is used by the counsel for the appellants. In their argument in that court, found on page 15 of the record, they

the testimony of the witnesses as referring to the will probate they were then opposing.

The judgment of the court below is affirmed, eliminating therefrom, however, the clause "el cual debera ejecutarse fiel y exactamente en todas sus partes." The costs o

instance will be charged against the appellants.

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.CELSO ICASIANO, petitioner-appellee,NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last wi

testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of

Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appoint

the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a s

administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administ

1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amende

supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed dup

(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their

opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, opp

Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order adm

the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the

is contrary to law and the evidence.

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 Villa

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

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

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 att

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 BuJudge 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

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 w

acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon

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 an

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

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 dup

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.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of

and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one anoth

witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numb

that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written i

language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one

occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date

2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the sam

affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were

written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with u

influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions

will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-app

stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined

look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively)

will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepar

documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the tesand Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witn



The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wro

signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because

paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of n

scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); a

feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particula

since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advance

of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed b

expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering the standard and challe

writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's

sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bu

vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as weintestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under pena

forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as s

by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or no

matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influ

are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

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

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

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 a

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 co

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 delib

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. 14

1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was a

of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise sat

Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin,

nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make th

page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the

requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed prob

original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, t

law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection t

signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature

third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existen

the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified o

proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the am

petition. IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

G.R. No. L-20374 October 11, 1923

In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,

AGUSTIN CORONEL, ET AL., opponents-appellants.

On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and testament of Dolores Coronel, the document Exhibit A, which transla

as follows:

In the name of God, Amen:

I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise of my mental faculties, do hereby make my last will and testamen

revoke all former wills by me executed.

I direct and order that my body be buried in conformity with my social standing.

That having no forced heirs, I will all my properties, both movable and immovable, to my nephew, Lorenzo Pecson, who is married to my niece Angela Coro

consideration of the good services with he has rendered, and is rendering to me with good will and disinterestedness and to my full satisfaction.

I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be able to dischar

duties as such executor for any reason whatsoever, I name and appoint as substitute executor my grandson Victor Pecson, a native and resident of the town of Betis, w

requiring him to give bond. 1awph!l.net

All my real and paraphernal property as well as my credits for I declare that I have no debts, are specified in an inventory.

In testimony whereof and as I do not know how to write my name, I have requested Vicente J. Francisco to write my name at the foot hereof and on the left marg

each of its sheet before me and all the undersigned witnesses this July 1, 1918.

VICENTE J. FRANCISCO



"For the testatrix Dolores Coronel

The foregoing document was executed and declared by Dolores Coronel to be her last will and testament in our presence, and as the testatrix does not know how to wr

name, she requested Vicente J. Francisco to sign her name under her express direction in our presence, at the foot, and on the left margin of each and every sheet, here

testimony whereof, each of us signed these presents in the presence of others and of the testatrix at the foot hereof and on the margin of each and everyone of the two

of which this document is composed, which are numbered "one" and "two" on the upper part of the face thereof.

(Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS SANTOS

MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE LA CRUZ DAMIAN CRISOSTOMO

On the left margin of the two sheets of the will the following signatures also appear:

Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos

Santos.

The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece of the deceased Dolores Coronel.

The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the deceased Macario Gozum, in her own behalf and that of her three

children, Hilarion Coronel, Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the deceased Hipolito Coronel, in her own behalf an

of her three children, Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel, Se

Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.

The probate of this will is impugned on the following grounds: (a) That the proof does not that the document Exhibit A above copied contains the last will of D

Coronel, and (b) that the attestation clause is not in accordance with the provisions of section 618 of the Code of Civil Procedure, as amended by Act No. 2645.

These are the two principal questions which are debated in this case and which we will now examine separately.

As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that it was improbable and exceptional that Dolores Coronel s

dispose of her estate, as set forth in the document Exhibit A, her true being that the same be distributed among her blood relatives; and second, that if such will not exprin fact, it was due to extraneous illegal influence.

Let us examine the first point.

The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural nor usual that she should completely exclude her blood re

from her vast estate, in order to will the same to one who is only a relative by affinity, there appearing no sufficient motive for such exclusion, inasmuch as until the de

Dolores Coronel, she maintained very cordial relations with the aforesaid relatives who had helped her in the management and direction of her lands. It appears, how

from the testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that Dolores Coronel revealed to him her suspicion against some of her nephe

having been accomplices in a robbery of which she had been a victim.

As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that he rendered them at least from the year 1914, although th

proof showing that he rendered such services long before that time.

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of relative one's estate an exceptional case. It is tru

ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of

estate by will when there are no forced heirs is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided in the first paragraph of article following terms:

Any person who was no forced heirs may dispose by will of all his property or any part of it in favor of any person qualified to acquire it.

Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for more than a quarter of a century, and for this reaso

not tenable to say that the excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the inhabitants of this country whose customs

have been take into consideration by the legislator in adopting this legal precept, are averse to such a liberty.

As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the moment. The proof adduced by this appelle, although contrad

shows by a preponderance of evidence that besides the services which the opponents admit had been rendered by him to Dolores Coronel since the year 1914, he ha

rendered services prior to that time and was the administrator and manager of the affairs of said Dolores in the last years of her life. And that this was not a whim

moment is shown by the fact that six years before the execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole

the document Exhibit B, which, translated, is as follows:

1. That my present property was acquired by me by inheritance from my parents, but a great part thereof was acquired by me by my own efforts and exertions;

2. That I have made no inventory of my properties, but they can be seen in the title deeds in my possession and in the declarations of ownership;

3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town, my heir to succeed to all my properties;

4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a resident of the same town;

5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to the sound direction of the aforesaid Lorenzo Pecson;

6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write this will in accordance with my wishes and precise instructions.

In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my mark between my name and surname, and don Francisco Dum

Don Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses, they having been present at the beginning of, durin

after, the execution of this my last will.

(Sgd.) "DOLORES CORONEL



Witnesses:

(Sgd.) "MARIANO SUNGLAO

MARCOS DE LA CRUZ

FRANCISCO DUMAUAL

SOTERO DUMAUAL

MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to support their contention that the intention of Dolores Coronel was to institute the said Pecson not a

beneficiary, but simply as executor and distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that he was appointed sold beneficiary is bas

the fact that he enjoyed the confidence of Dolores Coronel in 1918 and administered all her property, he did not exclusively have this confidence and administration in th

1912. Although such administration and confidence were enjoyed by Pecson always jointly with others and never exclusively, this fact does not show that the will o

testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs, nor does it prevent her, the testatrix, from instituting him in 1912 or 19

sole beneficiary; nor does it constitute, lastly, a test for determining whether or not such institution in favor of Pecson was the true will of the testatrix.

We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the designation of Lorenzo Pecson as her sole benef

Furthermore, although the institution of the beneficiary here would not seem the most usual and customary, still this would not be null per se.

In the absence of any statutory restriction every person possesses absolute dominion over his property, and may bestow it upon whomsoever he pleases without r

to natural or legal claim upon his bounty. If the testator possesses the requisite capacity to make a will, and the disposition of his property is not affected by fraud of u

influence, the will is not rendered invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator from making a will as eccentr

injudicious, or as unjust as caprice, frivolity, or revenge can dictate. However, as has already been shown, the unreasonable or unjustice of a will may be considered o

question of testamentary capacity. (40 Cyc., 1079.)

The testamentary capacity of Dolores Coronel is not disputed in this case.

Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was expressed in the testament Exhibit A, we will begin with expoundin

the idea of making the aforesaid will here controverted was borne and carried out.

About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was then her legal adviser and who, considering that in order tothe expression of her last will more legally valid, though it necessary that the statement be prepared in conformity with the laws in force at time of the death of the tes

and observing that the will Exhibit B lacked the extrinsic formalities required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the will be remade

followed the advice, and Attorney Francisco, after receiving her instructions, drew the will Exhibit A in accordance therewith, and brought it to the house of Dolores Coron

its execution.

Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and asked her whether the will was in accordance with her wishes. Do

Coronel answer that it was, and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly did in the presence of the witnesses, who in

signed it before the testatrix and in the presence of each other.

Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the opponents presented an affidavit of Pablo Bartolome to the

that, following instructions of Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she entrusted Pecson with the distribution of a

property among the relatives of the said Dolores. But during the new trial Pablo Bartolome, in spite of being present in the court room on the day of the trial, wa

introduced as a witness, without such an omission having been satisfactorily accounted for.

While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who signed the will, at the second hearing when the probat

controverted, yet we cannot consider this point against the appellee for this was not raised in any of the assignments of error made by the appellants. (Art. 20, Rules oSupreme Court.)

On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before the court the statement by him in his affidavit, since it was

duty to prove what they alleged, which was that Dolores Coronel had not understood the true contents of the will Exhibit A. Having suppressed, without explanatio

testimony of Pablo Bartolome, the presumption is against the opponents and that is, that such a testimony would have been adverse had it been produced at the heari

the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)

The opponents call our attention to the fourth clause of the document which says: "I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all

willed and ordained in this my will, without bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name and appoint as a subs

executor my grandson Victor Pecson, resident of the town of Betis, without requiring him to give bond," and contend that this clause is repugnant to the institution of Lo

Pecson as sole beneficiary of all her estate, for if such was the intention of the testatrix, there would have been no necessity of appointing an executor, nor any reaso

designating a substitute in case that the first one should not be able to discharge his duties, and they perceived in this clause the idea which, according to them, w

expressed in the document, and which was that Pecson was simply to be a mere executor entrusted with the distribution to the estate among the relatives of the testatrix

that should he not be able to do so, this duty would devolved upon his substitutes.

But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as the instant case, has to be distributed with the intervention

court. All executor has, besides, other duties and general and special powers intended for the preservation, defense, and liquidation of the estate so long as the same ha

reached, by order of the court, the hands of those entitled thereto.

The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her desire to will all her estate to Lorenzo Pecson. It is to be n

furthermore, that in the will, it was ordered that her body be given a burial in accordance with her social standing and she had a perfect right to designate a person who s

see to it that this order was complied with. One of the functions of an executor is the fulfillment of what is ordained in the will.

It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the promise made to Maria Coronel, whom Rosario Coronel ten

corroborate. We do not find such a promise to have been sufficiently proven, and much less to have been seriously made and coupled with a positive intention on the p

Dolores Coronel to fulfill the same. In the absence of sufficient proof of fraud, or undue influence, we cannot take such a promise into account, for even if such a promis

in fact made, Dolores Coronel could retract or forget it afterwards and dispose of her estate as she pleased. Wills themselves, which contain more than mere promise

essentially revocable.

It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase used by Jose M. Reyes in his deposition when speaking o

purpose for which Lorenzo Pecson was to receive the estate, to wit:



in order that the latter might dispose of the estate in the most appropriate manner

Weight is given to this phrase from the circumstance that its author was requested by Attorney Francisco to explain the contents of Exhibit B and had acted as interp

between Dolores Coronel and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and had translated into the Pampango dialect this last docu

and, lastly, was present at the execution of the will in question.

The disputed phrase "in order that the latter might dispose of the estate in the most appropriate manner" was used by the witness Reyes while sick in a hospita

testifying in the course of the taking of his deposition.

The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say "distribute it among the heirs." Limiting ourselves to its meanin

expression is a broad one, for the disposition may be effected in several and various ways, which may not necessarily be a "distribution among the heirs," and still

"disposition in the most appropriate manner." "To dispose" is not the same as "to distribute."

To judge correctly the import of this phrase, the circumstances under which it was used must be taken into account in this particular instance. The witness Reye

author of the phrase, was not expressing his own original ideas when he used it, but was translating into Spanish what Dolores Coronel had told him. According to the factssaid witness is not a Spaniard, that is to say, the Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact based on reason

experience that when a person translates from one language to another, it is easier for him to express with precision and accuracy when the version is from a foreign lang

to a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must be more familiar to him, to the Spanish language which is not hi

tongue. And judging from the language used by him during his testimony in this case, it cannot be said that this witness masters the Spanish language. Thus is explaine

fact that when asked to give the reason for the appointment of an executor in the will, he should say at the morning session that "Dolores Coronel did appoint Don Lo

Pecson and in his default, Victor Pecson, to act during her lifetime, but not after he death," which was explained at the afternoon session by saying "that Dolores Coron

appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in his default, either through death or incapacity, Mr. Victor Pecson was app

executor." Taking into account all the circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge of the duties of an executor, not to igno

of the elementary rule of law on the matter, for the practice of which he was qualified, but to a non-mastery of the Spanish language. We find in this detail of translation

by the witness Reyes no sufficient reason to believe that the will expressed by Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo Pe

executor and mere distributor of her estate among her heirs.

As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee to the exclusion of the relatives of Dolores Corone

understand that it was not his duty to show the reasons which the testatrix may have had for excluding her relatives from her estate, giving preference to him. His duty w

prove that the will was voluntary and authentic and he, who alleges that the estate was willed to another, has the burden of proving his allegation.

Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear in the will as sole beneficiary. However, after an examinat

all the proceedings had, we cannot find anything in the behavior of this lawyer, relative to the preparation and execution of the will, that would justify an unfav

conclusion as to his personal and professional conduct, nor that he should harbor any wrongful or fraudulent purpose.

We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the last one, Exhibit B (in the drawing of which he does not appe

her intervened), so that the instrument might be executed with all the new formalities required by the laws then in force; nor in the preparation of the new will substanti

accordance with the old one; nor in the selection of attesting witnesses who were persons other than the relatives of Dolores Coronel. Knowing, as he did, that Dolore

excluding her blood relatives from the inheritance, in spite of her having been asked by him whether their exclusion was due to a mere inadvertence, there is a satisf

explanation, compatible with honorable conduct, why said attorney should prescind from such relatives in the attesting of the will, to the end that no obstacle be placed i

way to the probating thereof.

The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that he should prepare it containing this detail is not in

fraudulent. There was in this case reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom she wanted to sign the document in her stead.

No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will, because the latter was already his client at the execution of saAttorney Francisco denied this fact, which we cannot consider proven after examining the evidence.

The conduct observed by this attorney after the death of Dolores Coronel in connection with the attempted arrangement between Lorenzo Pecson and the oppo

does not, in our opinion, constitute any data leading to the conclusion that an heir different from the true one intended by the testatrix should have been fraudulently ma

appear instituted in the will exhibit A. His attitude towards the opponents, as can be gathered from the proceedings and especially from his letter Exhibit D, does not show

perverse or fraudulent intent, but rather a conciliatory purpose. It is said that such a step was well calculated to prevent every possible opposition to the probate of th

Even admitting that one of his objects in entering into such negotiations was to avoid every possible to the probate of the will, such object is not incompatible with good

nor does it necessarily justify the inference that the heir instituted in the instrument was not the one whom the testatrix wanted appointed.

The appellants find rather suspicious the interest shown by the said attorney in trying to persuade Lorenzo Pecson to give them some share of the estate.

negotiations were not carried out by the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel, made by the latter in his own beha

that of his coopponents.

As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried, through fraud or any undue influence, to frustrate the al

intention of the testatrix to leave her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney Francisco to carry out his reproa

designs, but such depraved instrumentality was not proven, nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put into execution

condemnable plan, nor that both should have conspired for illegal purposes at the time of the preparation and execution of the will Exhibit A.

Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the provision whereby the estate was ordered distributed amo

heirs, the preponderance of the evidence is to the effect that said Norberto Paras was not present at such reading of the will. Appellant do not insist on the probative fo

the testimony of this witness, and do not oppose its being stricken out.

The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the intention of giving her estate to her blood relatives instead

Lorenzo Pecson at the time of the execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence should have intervened in the executi

said testament. Neither fraud nor evil is presumed and the record does not show either.

Turning to the second assignment of error, which is made to consist in the will having been probated in spite of the fact that the attestation clause was not in confo

with the provision of section 618 of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor of such clause which literally is as follows:

The foregoing document was executed and declared by Dolores Coronel to be her last will testament in our presence, and as testatrix does not know how to writname, she requested Vicente J. Francisco to sign her name under her express direction in our presence at the foot and on the left margin of each and every sheet here



testimony whereof, each of us signed these presents in the presence of others of the testatrix at the foot hereof and on the margin of each and everyone of the two pag

which this document is composed. These sheets are numbered correlatively with the words "one and "two on the upper part of the face thereof.

(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L. Crisostomo, Pablo Bartolome, Marcos de la Cruz, D

Crisostomo."

Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the presence of the testatrix and of each other, as required by sectio

of the Code of Civil Procedure, as amended, which on this particular point provides the following:

The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page there

caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages th

in the presence of the testator and of each other.

Stress is laid on the phrase used in the attestation clause above copied, to wit:

each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the appellants, namely, that it is equivalent to "of other per

and the other, that contended by the appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having inadvertently been omitted.

Should the first interpretation prevail and "other persons" be taken to mean persons different from the attesting witnesses, then one of the solemnities required b

would be lacking. Should the second be adopted and "of others" construed as meaning the other witnesses to the will, then the law would have been complied with in

respect.

Including the concomitant words, the controverted phrase results thus: "each of us signed these presents in the presence of others and of the testatrix."

If we should omit the words "of others and," the expression would be reduced to "each of us signed these presents in the presence of the testatrix," and the state

that the witnesses signed each in the presence of the others would be lacking. But as a matter of fact, these words "of others and" are present. Then, what for are they t

Is it to say that the witnesses signed in the presence of other persons foreign to the execution of the will, which is completely useless and to no purpose in the case, or w

for some useful, rational, necessary object, such as that of making it appear that the witnesses signed the will each in the presence of the others? The first theory presupthat the one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an inadmissible hypothesis, being repugnant to the facts shown by the r

The second theory is the most obvious, logical and reasonable under the circumstances. It is true that the expression proved to be deficient. The deficiency may have

caused by the drawer of the will or by the typist. If by the typist, then it must be presumed to have been merely accidental. If by the drawer, it is explainable takin

account that Spanish is not only not the native language of the Filipinos, who, in general, still speak until nowadays their own dialects, but also that such language is no

the only official language since several years ago.

In Re will of Abangan (40 Phil., 476), this court said:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments a

guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand

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

assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisite entirely unnecesary, useless and frustrative of the testator's las

must be disregarded.

We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the other witnesses," and that a grammatical or clerical erro

committed consisting in the omission of the article "the".

Grammatical or clerical errors are not usually considered of vital importance when the intention is manifest in the will.

The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to the construction of the language of the will when it becomes nec

for it to do so in order to effectuate the testators manifest intention as ascertained from the context of the will. But unless a different construction is so required the ord

rules of grammar should be adhered to in construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative, being the most adequate and reasonable.

The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court and invoked by the appellants, refers so far as pertinent to the

herein at issue, to an attestation clause wherein the statement that the witnesses signed the will in the presence of each other is totally absent. In the case at bar, there

expression "in the presence of others" whose reasonable interpretation is, as we have said, "in the presence of the other witnesses." We do not find any party betwee

present case and that of Re Estate of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the evidence to show that the attesting witnesses Damian Criso

and Sotero Dumaual were present at the execution of the will in controversy. Although this point is raised in the first assignment of error made by the appellants, and n

the second, it is discussed in this place because it refers to the very fact of attestation. However, we do not believe it necessary to analyze in detail the evidence of both p

on this particular point. The evidence leads us to the conclusion that the two witnesses aforementioned were present at the execution and signing of the will. Such is al

conclusion of the trial judge who, in this respect, states the following, in his decision:

As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in accordance with the provisions of law on the matter, that is, whet

not the testatrix signed the will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her presence and that of each other, the court,

observing the demeanor of the witnesses for both parties, is of the opinion that those for the petitioner spoke the truth. It is neither probable nor likely that a man ver

the law, such as Attorney Francisco, who was present at the execution of the will in question, and to whose conscientiousness in the matter of compliance with all the ext

formalities of the execution of a will, and to nothing else, was due the fact that the testatrix had cancelled her former will (Exhibit B) and had new one (Exhibit A) prepare

executed, should have consented the omission of formality compliance with which would have required little or no effort; namely, that of seeing to it that the testatrix a

attesting witnesses were all present when their respective signatures were affixed to the will." And the record does not furnish us sufficient ground for deviating from th

reasoning and findings of the trial judge. In conclusion we hold that the assignments of error made by the appellants are not supported by the evidence of r

The judgment appealed from if affirmed with costs against the appellants. So ordered.

G.R. No. L-17818 January 25, 1967



TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed Reyes y Barretto, plaintiffs-appellants,LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.

Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the sa

deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea wife under the terms of the will of the late Bibiano Barretto, cons

of lots in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.

The decision appealed from sets the antecedents of the case to be as follows:

"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 o

Land Records of this Province, being the share of plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."

It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate, consisting of real properties in Manila, Pampanga

Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.

When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will Salud Barretto, mother of plaintiff's wards, and

Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew anä nieces® The usufruct oæ the fishponä situateä iî

Saî Roque¬ Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo® Iî the meantime¬ Maria Gerardo was appointeä administratr

virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partitio

approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of the heirs followed forthwith

consequence, Salud Barretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in he

name.

Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of the said estate until the widow, Maria Gerardo died on March 5,

Upon her death, 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,

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. In rejecting the firs

presented by Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud was not the daughter of the decedent Maria Gerardo by her hu

Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate odeceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.

This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond under litigation, but of all the other properties willed and del

to Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of the proje

partition, but of the decision of the court based thereon as well.

The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab initio and Salud Barretto did not acquire any valid

thereto, and that the court did not acquire any jurisdiction of the person of the defendant, who was then a minor.'

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition submitted in the proceedings for the settlement of the est

Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee, Salud Bar

predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition was decreed o

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

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 h

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 o

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 th

owner. Hence, as stated at the beginning of this opinion, the Court a quo not only dismissed the plaintiffs' complaint but ordered them to return the properties received u

the project of partition previously mentioned as prayed for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for damages. Henc

appeal interposed by both plaintiffs and defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present case by the court below. The reason is obvious: Salud Ba

admittedly had been instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros; hence, the partition had between them coul

be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) doe

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 o

testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign the free portion of his est

whomsoever he chose. While the share (½) assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bi

Barretto.

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 prete

or total ommission of a forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an instance of preterit

omission of children of the testator's former marriage.

Appellee contends that the partition in question was void as a compromise on the civil status of Salud in violation of Article 1814 of the old Civil Code. This view is erro

since a compromise presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippine

2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlement of the estate of the testator.

can be no compromise over issues not in dispute. And while a compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties over the

that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely a proposal for distribution of the estate, that the court may accept or rejec

the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil.

643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, that vests title in the distribut

the decree was erroneous or not in conformity with law or the testament, the same should have been corrected by opportune appeal; but once it had become final, its bi

effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.



It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has become final, the validity or invalidity of the project of pa

becomes irrelevant.

It is, however, argued for the appellee that since the court's distribution of the estate of the late Bibiano Barretto was predicated on the project of partition executed by

Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and since no evidence was taken of the filiation of the

nor were any findings of fact or law made, the decree of distribution can have no greater validity than that of the basic partition, and must stand or fall with it, being i

nature of a judgment by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the propo

that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition filed in due time, where petition for "relief was filed before the compr

agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition was not only ratified by the court's decr

distribution, but actually consummated, so much so that the titles in the name of the deceased were cancelled, and new certificates issued in favor of the heirs, long befo

decree was attacked. Hence, Saminiada vs. Mata does not apply.

Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis for the decree of distribution was the project of partition. But, i

even without it, the distribution could stand, since it was in conformity with the probated will of Bibiano Barretto, against the provisions whereof no objection had been m

In fact it was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .

SEC. 640. Estate, How Administered. — When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and

letters testamentary or of administration, shall extend to all the estate of the testator in the Philippine Islands. Such estate, after the payment of just debts and expens

administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in ca

estates in these Islands belonging to persons who are inhabitants of another state or country. (Emphasis supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was w

jurisdiction to enter the decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be concluded by the result of the proceedings, not only as to their civil

but as the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the

acquires jurisdiction over all persons interested, through the publication of the notice prescribed by section 630 C.P.C.; and any order that any be entered therein is b

against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of the estate of a deceased person vests the title to the land of the est

the distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not apply to int

proceedings.

The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reas

circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the sam

by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another co

judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:

... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria Gerardo was not her judicially appointed guardian. The claim is not

Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partion that the guardianship proceedings

minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian had not yet been appointed; it meant that the guardianship proceedings had no

been terminated, and as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must have been already appointed when she signed the p

of partition. There is, therefore, no irregularity or defect or error in the project of partition, apparent on the record of the testate proceedings, which shows that Maria Ge

had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground for the contention that the

approving the project of partition is absolutely null and void and may be attacked collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but actually appeared and participated in the proceedings throug

guardian: she, therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her father's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that the distributee Salud was not her child, the act of said w

in agreeing to the oft-cited partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place, there is no evidence that when the est

Bibiano Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if fraud

committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor children, appellants herein, can be held liable therefor. I

second placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows that this period had elapsed

ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age five years later, in 1944. On that year, her cause of a

accrued to contest on the ground of fraud the court decree distributing her father's estate and the four-year period of limitation started to run, to expire in 1948 (Sectio

Act. 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefor

action was already barred when in August 31, 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes had induced her to delay filing action by verbally promis

reconvey the properties received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions of Mi

herself and her counsel. In fact, the trial court made no mention of such promise in the decision under appeal. Even more: granting arguendo that the promise was made

same can not bind the wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, a

of administration, can not bind his wards, being null and void as to them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the settlement of the estate of Bibiano Barretto duly approved b

Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Mi

Barretto's action to contest said partition and decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a pos

in bad faith and should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the plaintiffs'

for partition of the fishpond described in the complaint should have been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to app

Milagros Barretto Datu the properties enumeracted in said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the reco

returned to the court of origin, with instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Off

the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint No costs.



[G.R. No. 137566. February 28, 2001]ROBERTO G. ROSALES, as successor-in-interest of NAPOLEON S. ROSALES and LUIS BUSTILLO, petitioners, vs. THE HON. COURT OF APPEALS and NATIONAL DEVELOCORPORATION, as substituted plaintiff and the successor-in-interest of CONTINENTAL BANK, respondents.

This is a petition for review assailing the decision of the Court of Appeals dated January 6, 1999, and the resolution dated February 18, 1999, in CA-G.R. SP No. 46391.

On April 12, 1966, the Continental Bank instituted Civil Case No. 612 with the then Court of First Instance of Balayan, Batangas, Branch 7, entitled, “Continental Bank, Pl

versus Atlas Timber Company, Napoleon S. Rosales and Luis Bustillo, Defendants.” The complaint*1+ alleged that Atlas Timber C ompany, through its Managing P

Napoleon Rosales, and Luis Bustillo in his personal capacity, executed in favor of Continental Bank a promissory note dated August 11, 1965, in the amount of P1,000,00

that as security for the payment of the note, Bustillo executed in favor of the bank a real estate mortgage over forty-four (44) parcels of land registered in his name

Transfer Certificate of Title No. T-11337, situated in Nasugbu, Batangas; that likewise as security for the payment of the note, Rosales executed a real estate mortgage

forty-nine (49) parcels of land registered in his name under TCT Nos. T-11828 and T-11839, also in Nasugbu, Batangas; that defendants failed and refused to pay th

amortization on the loan of P90,000.00, thus rendering the whole principal amount thereof due and demandable. Plaintiff bank prayed that defendants be ordered to p

amount of One Million Pesos (P1,000,000.00) with interest thereon at 8% per annum and attorney’s fees equivalent to 10% thereof, and, in default thereof, that the real

mortgages executed by defendants Rosales and Bustillo in favor of the bank be judicially foreclosed.

In their Answer with Counterclaim,[2] defendants admitted the execution of the promissory note and real estate mortgages. By way of affirmative defenses, they averre

the loan was applied for under the Industrial Guaranty Loan Fund (IGLF) of the Central Bank, through Continental Bank, and was intended for the completion of the v

plant of Atlas Timber Company, then being constructed in Butuan City. Pursuant to the terms of the Fund, the proceeds of the loan in the amount of P1,000,000.00

deposited by the Central Bank with Continental Bank. Upon the assurance by Continental Bank that the full amount of P1,000,000.00 will be released to them, defen

executed the promissory note and real estate mortgages. However, instead of delivering to them the entire amount of P1,000,000.00, Continental Bank delivere

P424,000.00 and retained the balance of P576,000.00, despite repeated demands for the turn-over thereof. Consequently, defendants were unable to comple

construction of the plant and to manufacture veneer for exportation to the United States. Defendants, therefore, set up a counterclaim for pecuniary, moral and exem

damages and for attorney’s fees.

Continental Bank filed its answer to the counterclaim, alleging that out of the net proceeds of the loan, in the amount of P999,730.00, the sum of P575,535.82 was appli

previous loans obtained by Atlas Timber for the initial construction of the veneer plant.

On December 16, 1974, the trial court rendered its decision,[3] the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:

(1) Ordering the defendants Atlas Timber Company and Napoleon S. Rosales, jointly and severally, to pay plaintiff bank the sum of P1 million with interest at the r

8% per annum from August 11, 1965 until fully paid and the further sum equivalent to 10% o f the total amount due, as and for attorney’s fees, plus costs of suit, and

defendants shall pay within ninety (90) days from date of receipt of this decision;

(2) In default of such payment, the mortgaged properties including the improvements existing thereon covered by OCT (sic) No. T-11337 and TCT No. 11282, both of the

Records of Batangas, shall be sold at public auction to satisfy the judgment herein, without prejudice to the issuance of writ of execution against defendants Atlas T

Company and Napoleon S. Rosales in the event that the proceeds of the foreclosure sale be insufficient to satisfy the entire judgment.

Subsequently, the trial court issued an Order dated April 22, 1975,[5] amending the aforesaid decision as follows:

Finding plaintiff’s motion to amend the decision dated December 16, 1974 to be well-founded, same is hereby granted, and the dispositive part of the decision spec

paragraph 2 thereof, is hereby amended in the sense that Original Transfer Certificate of Title No. T-11337 should read as Transfer Certificate of Title No. T-11337 an

Transfer Certificate of Title No. T-11839 registered in the name of Napoleon S. Rosales given as security for the obligation mentioned in the complaint should be included public auction sale to satisfy the judgment in case of default in the payment of the obligation.

On July 14, 1975, after ascertaining that defendants have failed to pay the judgment debt within ninety (90) days from January 25, 1975, when service of the decision on

was deemed completed, the court issued the Writ of Execution,[6] commanding the Branch Deputy Sheriff to sell at public auction the lands covered by TCT Nos. T-1133

11828, and T-11839.

At the foreclosure sale, Continental Bank was awarded the lands as the highest bidder for the price of P120,500.00. Accordingly, the Branch Deputy Sheriff of the CFI, B

VII, Balayan, Batangas, executed the Officer’s Deed of Sale*7+ on September 25, 1975, conveying to Consolidated Bank the mortgaged parcels of land.

On October 30, 1975, Continental Bank filed a Motion for Confirmation of Officer’s Deed of Sale and To Order Issuance of Cert ificate of Final Record.[8] The hearing o

motion was set on December 3, 1975, and later reset to February 20, 1976. In the meantime, Atty. Santiago F. Alidio, collaborating counsel for defendants, f

Manifestation and Motion,[9] alleging that he had been designated as the City Legal Officer of the City of Manila since December 20, 1974; and that on February 20, 19

was directed by the Mayor of Manila to attend a conference at Malacañang Palace with Presidential Assistant Juan C. Tuvera. Hence, he moved that his appearance

hearing on said date be dispensed with and that defendants and their lead counsel, Atty. Tagalo, be served notice of hearing.

The lower court issued an Order dated June 15, 1976,*10+ denying Atty. Alidio’s prayer for deferment of the hearing and granting the confirmation and approval of sh

sale.

On September 19, 1996, petitioners Roberto G. Rosales, as successor-in-interest of Napoleon S. Rosales, and Luis Bustillo, filed with the lower court, then designated a

Regional Trial Court of Balayan, Batangas, Branch 9, a Motion to Reopen the case, on the ground that defendants and their lead counsel never received the decision

December 16, 1974; that they were never notified of any hearing for the confirmation of the Sheriff’s Deed of Sale; and that the lower court did not conduct a hearing p

the issuance of its Order dated June 15, 1976, confirming the Sheriff’s Deed of Sale. Petitioners prayed, among others, that the sheriff’s sale and order of confirmation

aside; and that another ninety-day period be fixed within which they shall pay the judgment debt.

In an Order dated March 17, 1997,*11+ the trial court denied petitioners’ motion to reopen the case.

Meanwhile, on June 30, 1997, the lower court, resolving an Ex-Parte Motion to Order the Issuance of Final Deed of Sale filed by National Development Corporation

successor-in-interest of Continental Bank, ruled as follows:

Perforce, the Sheriff does not have any option but to execute the Final Deed of Sale as mandated by Section 63 (a) of P.D. 15 29 and there is no need for the C

intervention in order for the sheriff to discharge his mandated function. For to do so, it would leave into the hands of the Sheriff the power to determine when to transfproperty to the purchaser as he wishes to.



ACCORDINGLY, the ex-parte motion is hereby DENIED.[12]

On that same date of June 30, 1997, the Ex-Officio Sheriff of the Regional Trial Court of Balayan, Batangas, executed the Final Deed of Sale in favor of Continental Bank.[13

Petitioners filed a motion for reconsideration of the denial of their motion to reopen the case, but the same was denied on November 4, 1997.[14] Thus, on January 2,

petitioners filed with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No. 46391, entitled, “Roberto G. Rosales, as succe ssor-in-interest of Napol

Rosales and Luis F. Bustillo, Petitioners versus Hon. Elihu A. Ybañez as Presiding Judge of the Regional Trial Court of Balayan, Batangas, Branch 9; National Develop

Corporation, as substituted plaintiff and successors in interest of Continental Bank; and, Arturo G. Matibag, as Ex- Officio Sheriff of Balayan, Batangas, Respondents.”*15+

Petitioners argued, in fine, that the lower court amended the decision in its Order dated April 22, 1975, by adding TCT No. T-11839 to the properties to be sold at

auction, without prior notice to petitioners (defendants therein). The amendment was substantial because it included property which was not stated in the original de

hence, the ninety-day period for petitioners to pay the judgment debt should be reckoned not from the date of service of the original decision but from the date of serv

the amendment thereto. Consequently, plaintiff’s motion for execution filed on May 3, 1975, or barely eleven days after the Order amending the decision, was prem

inasmuch as the thirty-day reglementary period to appeal had not yet elapsed. More importantly, the lower court’s Order dated June 30, 1975 for the issuance of a WExecution was null and void, since this was done before the expiration of the ninety-day period for defendants to pay the judgment debt. Therefore, petitioners conten

they should be allowed another period of ninety (90) days within which to pay the judgment debt.

Petitioners further argue that the sale to private respondent of the lands, consisting of a total of 271.306 hectares, for the measly sum of P120,500.00, must be stricken

as null and void for being grossly inadequate and unconscionable as to shock the moral sense. Moreover, the inclusion at the auction sale of the property of Luis Bu

covered by TCT No. T-11337, was likewise null and void in view of the lower court’s finding in its decision that “Luis Bustillo did not sign the p romissory note and the

should not be held liable for the same.”*16+

Likewise, petitioners assail the validity of the order of confirmation issued by the lower court for having been issued without affording them notice and hearing, as sho

the Certification of the Clerk of Court of the Regional Trial Court of Balayan, Batangas, dated March 11, 1999,[17] to the effect that counsel for Napoleon S. Rosales wa

furnished a copy of the Order of the court dated June 15, 1976. As mortgagors, they should have been afforded a hearing and an opportunity to show cause why th

should not be confirmed, as by proof of irregularities therein or gross inadequacy of the price. The lack of such a notice vitiates the confirmation sale, which may be se

anytime.

Finally, petitioners accused Consolidated Bank of laches and prescription for its failure to consolidate its title for twenty (20) years.

On January 6, 1999, the Court of Appeals dismissed the petition.*18+ Petitioners’ motion for reconsideration was denied in its Resolution dated February 18, 1999.[19] H

this petition for review.

In its comment,[20] private respondent National Development Corporation, successor-in-interest of Continental Bank, maintained that Napoleon Rosales was duly notif

all Orders of the trial court. In fact, petitioners wrote several letters to private respondent wherein they requested that they be allowed to repurchase the properties, an

they failed to pay the real estate taxes on the lands or perform any act consistent with ownership thereof. Based on these, petitioners are estopped from claiming own

over the properties

On August 25, 1999, the petition was given due course and the parties were required to submit their respective memoranda.[21]

There is merit in the petition.

The Court of Appeals dismissed the petition for certiorari on the main ground that service on petitioners of the decision dated December 16, 1974 as well as the orders o

lower court were deemed completed; and that petitioners, by their subsequent acts, should be deemed to have constructive notice of the decision of the case a

However, the Court of Appeals failed to address petitioners’ primary argument in their petition for certiorari – that the issuance of the writ of execution was null and vofailure to afford petitioners the full ninety-day period within which to pay the judgment debt and avoid the sale of their properties at public auction.

We agree with petitioners that their period of appeal and the ninety days grace period within which they could have paid the judgment debt should have been counted

service of the Order dated April 22, 1975, which substantially amended the decision. The amendatory Order added TCT No. T-11839 to the properties that were to be jud

foreclosed and sold at public auction in the event that defendants therein fail to pay the judgment debt within the ninety-day period.

As such, the period to appeal should be reckoned from service of the said amendatory Order. Where a judgment is amended, the date of the amendment sho

considered the date of the decision in the computation of the period for perfecting the appeal.[22] For all intents and purposes, the lower court rendered a new judgmen

which the time to appeal must be reckoned.[23]

In the case at bar, the records reflect that a copy of the amendatory Order was sent to defense counsel by registered mail on April 23, 1975. Assuming there was constr

notice, service thereof must have been deemed completed sometime thereafter. Consequently, the motion for execution filed by Continental Bank on May 3, 197

premature, inasmuch as it was still within the reglementary period for petitioners to appeal, which under the Rules in force at that time was fixed at thirty days.[24]

(T)he rule is that a judgment may be modified prior to the perfection of the appeal while the lower court still has control over said judgment. In the case involved, there w

actual material amendment of the dispositive portion of the original decis ion before an appeal was perfected by the defendant. It is likewise settled that, in such a sit

and for all intents and purposes, a new judgment has been promulgated and it is from receipt thereof that the period to appeal must be reckoned.[25]

More importantly, the writ of execution issued by the trial court on July 14, 1975, which states that “defendants Atlas Timber Company, Napoleon S. Rosa les and Luis B

failed to make any payment even after the ninety (90) day period from January 25, 1975, when service of the Decision upon them is deemed completed,”*26+ and comma

the Branch Deputy Sheriff to sell at public auction all the foreclosed properties, was null and void. The ninety-day period within which petitioners could have pa

judgment debt and thus avoided the sale of their properties at public auction should have commenced a few days from April 23, 1975. When the Writ of Execution was

on July 14, 1975, the said ninety-day period had not yet expired.

Since petitioners were deprived of the full use of the ninety-day period within which to pay the judgment debt, the writ of execution and the order to sell the proper

public auction were null and void. A judgment in an action for foreclosure of mortgage could only be executed in a manner prescribed in the Rules. Where the or

execution was not in conformity with the Rules, the same is null and void.[27] The order for defendants to pay the judgment debt within ninety days, prior to the sale o

foreclosed properties at public auction, is a substantive requirement which cannot be omitted.[28]

This 90-day period given in the rule is not a procedural requirement merely; it is a substantive right granted to the mortgage debtor as the last opportunity to pay the deb

save his mortgaged property from final disposition at the foreclosure sale. It is one of the two steps necessary to destroy what in law is known as the mortgagor’s “eq



redemption,” the other being the sale. It may not be omitted. As the writ of execution or the order allowing the sale of the mortgaged property was issued without gr

the mortgage debtor said 90-day period, the order for the sale of the property would be a denial of a substantial right and void.[29]

Consequently, the sale to Continental Bank of the subject real properties is likewise null and void. Necessarily, respondent’s contention that petitioners’ right of actio

prescribed must perforce fail. The action or defense for the declaration of inexistence of a contract does not prescribe.[30] A contract which is null and void is subject to

at any time.[31] Being null and void, the sale of the properties to Continental Bank produced no legal effects whatsoever. Quod nullum est, nullum producit effectum.[32

Apart from the foregoing, there exists in this case a more compelling reason to nullify the auction sale, which is the gross inadequacy of the price at which respondent acq

the lands. If it is to be presumed that private transactions were fair and regular,[33] and the ordinary course of business was followed,[34] then the properties had a m

value of, at the very least, One Million Pesos (P1,000,000.00), which was the amount of the loan secured by the real estate mortgages executed on the land. Moreove

also presumed that there was sufficient consideration for a contract.[35] Parenthetically, it is worthy to note that the totality of the mortgaged properties consisted of n

three lots, with an aggregate area of 271.306 hectares. These vast tracts of land, however, were sold to Continental Bank for only P120,500.00, or roughly twelve p

(12%) of the estimated market value of the property.

There is no dispute that mere inadequacy of the price per se will not set aside a judicial sale of real property. Nevertheless, where the inadequacy of the price is shocking to the conscience, such that the mind revolts at it and such that a reasonable man would neither directly nor indirectly be likely to consent to it,[36] the sale sh

declared null and void.[37] In the early case of Director of Lands v. Abarca,[38] we ruled:

In dismissing the claim of Sarenas and Braganza, the lower court held that the sale by the sheriff of the property in question in favor of said claimants was null and

because it was not made in accordance with the requirements of the law, and also because the amount of P877.25 paid by Sarenas and Braganza was absolutely inadeq

In deciding this appeal we do not deem it necessary to discuss all the questions raised by the parties in their briefs. We believe that the lower court was right in declari

sheriff’s sale null and void on the ground of the inadequacy of the price paid. It appears that in 1927 the assessed value of the contested property was more than P60,0

judicial sale of real property will be set aside when the price is so inadequate as to shock the conscience of the court. (National Bank vs. Gonzalez, 45 Phil., 693.)[39]

Respondents allege that petitioners should be held guilty of laches. We do not agree. There is no absolute rule as to what constitutes laches or staleness of demand; eac

is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and since laches is an equitable do

its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetrate fraud and injustice.[40] In Santiago v. Court of Appeals, [4

held:

As for laches, its essence is the failure or neglect, for an unreasonable and unexplained length of time to do that which, by the exercise of due diligence, could or shouldbeen done earlier; it is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has aband

it or declined to assert it (Felix v. Buenaseda, 240 SCRA 139, 152 [1995], citing Cristobal v. Melchor, 78 SCRA 175, 182 [1977]). But there is, to be sure, no absolute rule

what constitutes laches or staleness of demand; each case is to be determined according to its particular circumstances. The question of laches is addressed to the

discretion of the court and since laches is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perp

fraud and injustice (Jimenez v. Fernandez, 184 SCRA 190, 197 [1990]). In the case under consideration, it would not only be impractical but well-nigh unjust and pa

iniquitous to apply laches against private respondent and vest ownership over a valuable piece of real property in favor of petitioners by virtue of an absolutely simulated

of sale never, in the first place, meant to convey any right over the subject property. It is the better rule that courts, under the principle of equity, will not be guided or

strictly by the statute of limitations or the doctrine of laches when to do so, manifest wrong or injustice would result (Rañeses v. Intermediate Appellate Court, 187 SCR

404 [1990], citing Cristobal v. Melchor, supra).[42]

Respondent argues that petitioners should likewise be declared estopped from seeking the declaration of nullity of the auction sale because they offered to repurchas

lands from the bank. It appears that these proposals were made between the periods September 2, 1993 and July 30, 1996,[43] which was prior to the filing by petition

their motion to reopen the case on September 16, 1996. Rather than construing this offer against petitioners, this gesture must be taken as an intention to avoid f

litigation and, thus, partook of the nature of an offer to compromise. As such, the same cannot be taken as an admission that petitioners were liable for the jud

debt.[44] Necessarily, and with more reason, the offer should not be taken as a waiver of their right to assail the validity of the sale. Veri ly, by offering to redee

properties, petitioners would attain their ultimate objective, i.e., to pay off the judgment debt and regain ownership of their lands. When respondent refused this lastproposal, as it were, petitioners were constrained to resort to legal means to achieve their goal, and thus filed with the trial court their motion to reopen the case.

Moreover, we find that, insofar as petitioner Bustillo’s land is concerned, the dispositive portion of the decision was not in accord wi th the findings as contained in the

thereof. While the dispositive portion prevails over the body of the decision in case of confl ict, this rule does not apply where it is clear from the body of the decisio

there was a glaring error made in the dispositive portion, in which case the body of the decision will control.

The general rule is, where there is a conflict between the dispositive portion or the fallo and the body of the decision, the fallo controls. This rule rests on the theory th

fallo is the final order while the opinion in the body is merely a statement ordering nothing. However, where the inevitable conclusion from the body of the decision is so

as to show that there was a mistake in the dispositive portion, the body of the decision will prevail.[45]

In the case below, the trial court clearly found that Bustillo did not make or sign the promissory note, and thus declared that he should not be held liable for the loan a

property should not be sold at public auction, unless the properties included in petitioner Rosales’ mortgage was not suffici ent to satisfy the entire money judgment.

dispositive portion, however, the trial court ordered that TCT No. T-11337, in the name of petitioner Bustillo, was to be sold at public auction, absolutely and w

qualification. This part of the judgment, which subjected Bustillo’s property primarily liable for the judgment debt notwithstanding the finding that the same should o

made to answer for the debt in a subsidiary manner, violated Bustillo’s right against the deprivation of property without due process of law. Hence, the body of the de

should have prevailed over the dispositive portion, and Bustillo’s property should not have been sold at public auction unles s it was shown that the lands belong

Napoleon Rosales were insufficient to satisfy the judgment debt.

Therefore, the sheriff’s sale of TCT Nos. T-11337, T-11828 and T-11839 to Continental Bank is hereby declared null and void. It should be stressed that we are not here

upon to resolve the merits of Civil Case No. 612, as contained in the decision of the Court of First Instance of Balayan, Batangas dated December 16, 1974. In their petiti

certiorari before the Court of Appeals as well as in the petition for review before us, petitioners question Continental Bank ’s act of debiting the sum of P576,000.00 fro

proceeds of their loan, purportedly to satisfy previous obligations incurred by Atlas Timber Company. However, the findings of fact of the trial court on this matter we

appealed by petitioners, albeit for reasons not attributable to them.

Hence, the decision of December 16, 1974, as amended by the Order dated April 22, 1975, should not be disturbed, except only to delete TCT No. 11337 in the name o

Bustillo from the lands to be judicially foreclosed, in view of our finding as above-stated. Petitioners, therefore, remain liable to pay respondent the amount of the l

P1,000,000.00, with interest thereon at the rate of 8% per annum, and an amount equivalent to 10% thereof as attorney’s fees, as stipulated in the promissory

Petitioners are hereby granted a new period of one hundred twenty (120) days within which to pay the same, otherwise the lands covered by TCT Nos. 11828 and 11839

be sold at public auction to satisfy the debt. Under the 1997 Rules of Civil Procedure, the period prescribed for that purpose in cases of judicial foreclosure is not les

ninety (90) days nor more than one hundred twenty (120) days, counted from entry of judgment.[46]



WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals dated January 6, 1999, and the Resolution dated February 18, 1999, in CA-G.R. SP No. 4639

REVERSED and SET ASIDE. The sale of petitioners’ lands covered by TCT Nos. T-11337, T-11828 and T-11839 to Continental Bank is declared NULL and VOID. Any tra

made and any and all certificates of title issued in lieu of TCT Nos. T-11337, T-11828 and T-11839, are ORDERED CANCELLED.

Petitioners are ordered to pay to respondent National Development Corporation, as successor-in-interest of Continental Bank, the sum of One Million Pesos (P1,000,00

with interest thereon at the rate of eight percent (8%) per annum computed from August 11, 1965 until the date of full payment, and an amount equivalent to ten p

(10%) of the total amount due, as and for attorney’s fees, plus costs of suit, within a period of one hundred twenty (120) days from the entry of judgment. In default o

payment, the property included in TCT Nos. T-11828 and T-11839 in the name of Napoleon S. Rosales shall be sold at public auction to satisfy the judgment.

G.R. No. L-23445 June 23, 1966REMEDIOS NUGUID, petitioner and appellant,FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents

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 on November 17, 1951,

11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the pr

of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors — who are compulsory heirs

deceased in the direct ascending line — were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid

dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited — to an examination o

resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities

prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings — is not called upon to rule on the in

validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them, the meat of the case

intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated.2 But petitioner and oppositors, in the court

and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught

appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the in

validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might a

meet head-on the issue of the validity of the provisions of the will in question.3 After all, there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study of the disputed w

the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and bequeath all of the pro

which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh

November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, 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 aft

death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator,

void the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni

deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponherencia forzosa.



Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; oblite

blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d

774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending lin

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, theydeprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la instit

de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petit

as the sole, universal heir — nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Per

Rosario Nuguid died intestate. Says Manresa:

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion inte

total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los here

instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anul

institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance res

totally abrogating the will. Because, the nullification of such institution of universal heir — without any other testamentary disposition in the will — amounts to a decla

that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion express

rule of interpretation, viz:

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall be valid insofar as they are not inoffic

Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal he

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 institut

testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component pa

Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests)

subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate successio

entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14

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, inte

succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15 From this, petitioner draws the conclusion that Articl"does not apply to the case at bar". This argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, the

neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitim

a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se den

pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed

"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20

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 ineff

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 r

"shall annul the institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineff

disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person disinher

which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited

have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and

disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," althoug

inheritance of the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordi

must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every c

institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 rega

total or partial nullity of the institution, would. be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said

concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we w

be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a spprovision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt



as a thing separate and distinct from legacies or betterments. And they are separate and distinct not only because they are distinctly and separately treated in said artic

because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed

particular or special title. ... But again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Consid

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.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

G.R. No. 76648 February 26, 1988THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners,COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,1986 affirming in toto the decision of the Regional Trial Co

Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads:

WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Her

Montinola in accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate.

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

76 of the Rules of Court.

SO ORDERED. 3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial C

seeking the probate of the holographic will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single, parentless and childless on

29,1981 at the age of 70 years, devised in this will several of her real properties to specified persons.

On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special administrator. 5 With the conformity of a

relatives and heirs of the testatrix except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special Administrator of the testate estadeceased.

On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said win, filed her Opposition to Proba

Will, 7 alleging inter alia: that the subject will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the te

was not in full possession of her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix

beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the estate.

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

the probate of the disputed will.

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

On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her motion was the Affidavit of Merit of Gregorio Montinola S

petitioner's son, alleging that witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted o

latter.

The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of merit attached

motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly

light on the fact of grave illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these facts were brou

light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its resolution of November 20, 1986 12 on the g

that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsider

which is prescribed by law.

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

In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought

presented is not merely corroborative or cumulative.

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

Rules of Court. We find merit in this contention.

Section 1, Rule 53 provides —

Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence

could not have been discovered prior to the trial in the court below by the exercise of the diligence and which is of such a character as would probably change the result

motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence.

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

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court

have finally succeeded in tracking them down;

4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact thtestatrix was gravely ill at or but the time that the questioned will was allegedly executed;



5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that there was 'undue infl

exerted by petitioner and other relatives to procure improper favors from the testatrix;

xxx xxx xxx 13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented said the hearing is

sufficient to justify the holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before the court to testify. Affiant a

only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted o

testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. 1

affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.

Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affian

efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had a

time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been discovered and preseduring the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to discove

evidence. 15

In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been broug

light during the trial, and new evidence on this point is merely corroborative and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence e

presented win not carry much probative weight which can alter the judgment. 17

It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioners son in his manifestation admitted

he had to request a new law firm to do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. 18 This would e

the haphazard preparation of the motion, thus failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal s

the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial.

The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fift

or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsiderati

petitioner was filed on October 30,1986, it was obviously filed out of time.

Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the pr

court as to the due execution of the will and the testamentary capacity of testatrix are now conclusive. 20

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

During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared th

contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction

Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of holographic wills.

As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatri

already seriously ill and dying of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant comp

of testatrix, which upon careful examination did not prove such claim of antedating.

The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities required by law are conclusive o

Supreme Court when supported by evidence. 23 We have examined the records of this case and find no error in the conclusion arrived at by the respondent court thcontested will was duly executed in accordance with law.

Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she sha

intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix.

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

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is

that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to d

of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889...

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

succeed.

It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latte

reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will.

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

We cannot subscribe to this contention. Art. 841 of the Civil Code provides —

A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the pers

instituted should not accept the inheritance or should be incapacitated to succeed.

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

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix w

unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.



Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are strong in the Philippines, it

testator's right to disregard non-compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud or undue influence. 26 Diver

apportionment is the usual reason for making a testament, otherwise, the decedent might as well die intestate. 27

The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on

conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have been exercised. 28 The exercise of imp

pressure and undue influence must be supported by substantial evidence that it was actually exercised. 29

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

There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that decreased had testamentary capacity at the time o

execution of the Will, is the Will itself which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handw

characteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

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

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

influence or improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1

toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory.

G.R. No. 72706 October 27, 1987CONSTANTINO C. ACAIN, petitioner,HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) orderin

dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motio

reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismi

petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain athe issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving

in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly execut

Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by p

respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testa

On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my b

SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me,

money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constan

Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No

ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile dece

and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceed

(2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition

preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petition

3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio

in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo,

Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157

Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):



(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic va

thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preteriti

"compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institut

heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share

inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the

of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, the

neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widconcerned, 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

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

thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum f

Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as

were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the

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. Henc

is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispues

virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not res

intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will becaus

nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Ca

worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been pro

in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs wnecessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or

property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one

has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there

no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outs

appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by ope

of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir

testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110

465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]

axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate rem

the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion

trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the ex

validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The in

validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called up

rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals

SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and

upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of abs

preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme

upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught

appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the in

validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might a

meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution.



In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institut

proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissa

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowe

probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. W

circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should

the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following ground

petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p.

It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved a

hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on Februa

1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner abrothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exerc

futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the int

validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of cer

and prohibition were properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiora

prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Ap

supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari ma

entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 a

Resolution dated October 23, 1985 are hereby AFFIRMED.

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or volunt

intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would

distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical adde

supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of h

not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution

will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such h

receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy en

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or volunt

intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would

distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical adde

supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of h

not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution

will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such h

receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy en



G.R. No. L-26306 April 27, 1988TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix- appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants,GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.

This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in Special Proceedings No. 812, Testate of the late Gregorio Venture, d

October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio Ventura, and in her place appointing the app

Mercedes Ventura and Gregoria Ventura as joint administratrices of the estate. (Record on Appeal, pp. 120-131.)

Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel Ventura and Juana Cardona are his son and saving spouse who are al

brother and mother of Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's legitimate children with his former wife, the

Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4).

On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not include the appellees and the petition was docketed as Special Procee

No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an illegitimate child, was named and appointed by the testator to be the exeof his will and the administratrix of his estate (Record on Appeal, p. 7).

In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10). Gregorio Ventura died on September 26,1955. On October 10, 195

appellant Maria Ventura filed a motion for her appointment as executrix and for the issuance of letters testamentary in her favor (Record on Appeal, pp. 10-11). On Oc

17, 1955, Maria Ventura was appointed executrix and the corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 11-12).

On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura (Record on Appeal, pp. 12-20).

On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive. (Record on Appeal, pp. 20-27). Said account of administration was oppos

the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,1963 (Reco

Appeal, pp. 46-50). Both oppositions assailed the veracity of the report as not reflecting the true income of the estate and the expenses which allegedly are not administ

expenses. But on January 25, 1961, Maria Ventura filed a motion to hold in abeyance the approval of the accounts of administration or to have their approval witho

opposition of the spouses Mercedes Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on the ground that the question of the paternity of Mer

Ventura and Gregoria Ventura is still pending final determination before the Supreme Court and that should they be adjudged the adulterous children of testator, as cla

they are not entitled to inherit nor to oppose the approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura and Pedro Corpuon February 2, 1961 their opposition to the motion to hold in abeyance the approval of the accounts of administration on the ground that Mercedes and Gregoria Ventur

already been declared by the Court of First Instance in Civil Cases No. 1064 and 1476, which cases are supposed to be pending before the Supreme Court, as the legi

children of Gregorio Ventura, hence, they have reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold in abeyance the ap

of the accounts was denied (Record on Appeal, pp. 39-40).

It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection with the accounts of the executrix Maria Ventura dated June 17, 196

the Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45).

On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1) motion to remove the executrix Maria Ventura which was supplem

on April 27, 1965; (2) motion to require her to deposit the harvest of palay of the property under administration in a bonded warehouse; (3) motion to render an account

the proceeds and expenses of Administration; and (4) motion to require her to include in the inventory of the estate certain excluded properties (Record on Appeal, pp.

71). An opposition to said motions was filed by the heirs Juana Cardona and Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61;

and 71).

On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-to-date Accounting and to Require Executrix Ventura to Include Ex

Properties in Her Inventory were ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two motions were however set for hearing.

The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is grossly incompetent; (2) that she has maliciously and purposely con

certain properties of the estate in the inventory; (3) that she is merely an illegitimate daughter who can have no harmonious relations with the appellees; (4) that the exe

has neglected to render her accounts and failed to comply with the Order of the Court of December 12, 1963, requiring her to file her accounts of administration for the

1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5

she is with permanent physical defect hindering her from efficiently performing her duties as an executrix (Record on Appeal, pp. 50-53 and 74-79).

On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which

again opposed by the spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses Mercedes Ventura and Pedro Corpuz on September 29,

(Record on Appeal, pp. 106-120). On June 2, 1965, the executrix filed her supplemental opposition to the aforesaid four motions, and prayed that the joint supplem

motion to remove the executrix be denied or held in abeyance until after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Reco

Appeal, pp. 85-1 01). On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the administratrix to pay the same within thirty (30) day

September 13, 1965, the lower court denied the suspension of the proceedings and deferred the resolution of the joint motion to remove executrix Maria Ventura unti

the examination of the physical fitness of said executrix to undertake her duties as such. Also, it ordered the deposit of all palay to be harvested in the next agricultura

and subsequent years to be deposited in a bonded warehouse to be selected by the Court and the palay so deposited shall not be withdrawn without the express permissi

the Court (Record on Appeal, pp. 103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition to the accounts of administrat

Maria Ventura dated May 17, 1965, while that of spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among other

said accounts do not reflect the true and actual income of the estate and that the expenses reported thereunder are fake, exhorbitant and speculative (Record on Appe

106-120).

On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the funds of the estate, was inefficient and incompetent, has failed to c

with the orders of the Court in the matter of presenting up-to-date statements of accounts and neglected to pay the real estate taxes of the estate, rendered the quest

decision, the dispositive portion of which reads:

WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of the estate and in her place Mercedes Ventura and Gregoria Ventura are hereby appo

joint a tratrices of the estate upon filing by each of them of a bond of P 7,000.00. Let letters of administration be issued to Mercedes Ventura and Gregoria Ventura upon

qualification.

In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the following errors allegedly committed by the probate court:



On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel Vic

having failed to submit their respective briefs within the period for the purpose, which expired on July 2 and May 29,1967, respectively, the Supreme Court Resolv

consider this case submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152).

The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally justified. This issue has, however, become moot and academic in view

decision of this Court in related cases.

At the outset, it is worthy to note that aside from the instant special proceedings, there are two other civil cases involving the estate of the deceased Gregoria Ventura, na

Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura in the Court of First Instance of Nueva Ecija, Bra

against the other appellees herein Mercedes Ventura and their father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record on App

95). Gregoria and Mercedes Ventura claimed that they are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked tha

half of the properties described in the complaint be declared as the share of their mother in the conjugal partnership, with them as the only forced heirs of their m

Paulina (Joint Brief for the Appellants, pp. 53-68).

Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and GrVentura, before the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only children of Modesto Simpliciano, sole brother of Paulina Simpliciano,

instead of Mercedes and Gregoria Ventura, whom they claimed are adulterous children of Paulina with another man, Teodoro Ventura and as such are not entitled to in

from her, are the ones who should inherit the share of Paulina Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-79)

It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower court rendered its judgment, the dispositive portion of which re

follows:

WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the ligitimate daughters of Paulina Simpliciano and Gregorio Ve

declaring that as such ligitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph six of the complaint; ordering the defe

Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which shall be divided eq

between Mercedes and Gregoria Ventura declaring Mercedes Ventura and Pedro Corpuz are the exclusive owners of the property describe in the certificate of Title N

1102, 212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of Gregorio Ventu

Paulina Simpliciano the sum of P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina Simpliciano to

Mercedes and Gregoria Ventura have succeeded, to be divided between Mercedes and Gregoria in equal parts; and dismissing Civil Case No. 1476. The parties are urg

arrive at an amicable partition of the properties herein adjudicated within twenty days from receipt of this decision. Upon their failure to do so, the Court shall acommissioners to divide the properties in accordance with the terms of the decision. Without pronouncements as to costs. (Emphasis supplied). (Joint Brief for the Appe

pp. 3738.)

Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the deceased Gregorio Ventura in Special Proceedings No. 812,

motion was opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision dated November 4,1959 in Civil Cases Nos. 106

1476 was not yet final.

On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio Ventura. The motion for reconsideration of the aforesaid order fi

executrix Maria Ventura was denied on June 11, 1964.

Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate court in Special Proceedings No. 812 before the Supreme Court an

docketed as G.R. No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled, as follows:

And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos.1064 and 1476 declaring that appellees Mercede

Gregoria Ventura are the ligimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are entitled to the annulment of the instituti

heirs made in the probated will of said deceased became final and executory upon the finality of the order, approving ther partition directed in the decision in questioneed not indulge in any discussion as to whether or not, as of the time the orders here in question were issued by the trial court said decision had the nature

interlocutory order only. To be sure, in the case of Miranda, aforementioned, the opinion of the majority of the Court may well be invoked against appellant's pose. In

event, even if the Court were minded to modify again Miranda and go back to Fuentebella and Zaldariaga — and it is not, as of now — there can be no question th

approval by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom, Emmanuel Mariano,

husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That order of approval is an appealable one, and inasmuch

appeal has been taken from the same, it is beyond dispute that the decision in controversy has already become final and executory in all respects. Hence, the case at ba

become moot and academic. (Ventura vs. Ventura, 77 SCRA 159, May 27,1977)

Under Article 854 of the Civil Code, "the pretention or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution o

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," and as a r

intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix moot and academic. This would now necessitate the appointment of an

administrator, under the following provision:

Section 6, Rule 78 of the Rules of Court:

When and to whom letters of administration granted.-If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bo

a person dies intestate, a petition shall be granted:

(a) To the surviving husband or wife, as the case may be or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or bot

the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;"

xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and M

Ventura. The "next of kin" has been defined as those persons who are entitled under the statute of distribution to the decedent's property (Cooper vs. Cooper, 43 Ind. A

88 NE 341). It is generally said that "the nearest of kin, whose interest in the estate is more preponderant, is preferred in the choice of administrator. 'Among member

class the strongest ground for preference is the amount or preponderance of interest. As between next of kin, the nearest of kin is to be preferred." (Cabanas, et al. vs.

et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court in the Philippines, Vol. V-B 1970 Ed., p. 23).

As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the

Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children of Gregorio Ventura, namely: MarMiguel Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana Cardona,



surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in ord

represent both interests. PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED.

Separate Opinions

MELENCIO-HERRERA, J., Disenting:

Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706, October 27, 1987, preterition results in total intestacy if it was mistakenly ma

through inadvertence. In this case there was no mistake nor oversight whatsoever. The testator himself sought the probate of his Will during his lifetime wherein he no

excluded his "forced heirs" but even denied paternity.

Under the circumstances, the omission being obviously intentional, the effect is a defective disinheritance covered by Article 918 of the Civil Code under which the instit

of heir is not wholly void but only in so far as it prejudices the ligitimes of the persons disinherited. The nullity is partial unlike in true preterition where the nullity is total.

This conclusion further finds support in the prevailing spirit in the codal provisions, which is to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852

Civil Code).

Separate Opinions

MELENCIO-HERRERA, J., Disenting:

Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706, October 27, 1987, preterition results in total intestacy if it was mistakenly ma

through inadvertence. In this case there was no mistake nor oversight whatsoever. The testator himself sought the probate of his Will during his lifetime wherein he no

excluded his "forced heirs" but even denied paternity.

Under the circumstances, the omission being obviously intentional, the effect is a defective disinheritance covered by Article 918 of the Civil Code under which the instit

of heir is not wholly void but only in so far as it prejudices the ligitimes of the persons disinherited. The nullity is partial unlike in true preterition where the nullity is total.

This conclusion further finds support in the prevailing spirit in the codal provisions, which is to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852

Civil Code).

G.R. No. L-31703 February 13, 1930CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee,

MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendants-appellants.

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 M

Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena.

And as said 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

of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana.

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

said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.

The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.

The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria Alcantara.

2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as "herederos

comisarios."

3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.

The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probat

whose legal force and effect is not in dispute.

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

Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantar

living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upo

death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executri

properties composing my hereditary estate, 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; and should any of these die, his share

serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her childr

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 exec

Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered

indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I recognize that his character

adapted to management and administration.

The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution.

This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the inst

heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it

matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs ar

under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection with cla

the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.



The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now

whether the instants case is a fideicommissary substitution.

In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the w

approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing ex

about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal h

does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided

following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the id

substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance.

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 incomp

with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the id

fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it o

second heir. On this point 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 thin

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

inherit from the latter and not from the fiduciary. (Emphasis ours.)

It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might he

observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may

confused with, the English "trust."

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 sa

may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.

Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix

from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limi

transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so

it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the

fixed by article 781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree."

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

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. This provision complie

another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.

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. T

said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present i

case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause

the will.

2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X w

provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will,

leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the dispo

thereof in case she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI.

Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time

testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in whic

second heir does not inherit from the heir first instituted, but from the testator.

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, fro

moment of the death of the testatrix, Ana Maria Alcantara.

Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a

does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.

The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.

Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

Street, J., reserves his vote.

succession cases art.820-870

Documents