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[G.R. No. 124099. October 30, 1997]

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE, ESTABANA GALOLO, and CELSA AGAPE, petitioners, vs. COURT OF APPEALS AND JULIO VIVARES, respondents.

D E C I S I O N

TORRES, JR., J.:

Unless legally flawed, a testators intention in his last will and testament is its life and soul which deserves reverential observance.

The controversy before us deals with such a case.

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals[1] dated November 29, 1995, the dispositive portion of which reads:

WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letter Testamentary in favor of petitioner Julio A. Vivares as executor without bond is AFFIRMED but modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are declared VALID. Except as above modified, the judgment appealed from is AFFIRMED.

SO ORDERED."[2]

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:

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II. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;

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b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan, all in the province of Misamis Oriental.[3]

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.

Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin. The petitioner was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation, once a week for three consecutive weeks. Notices were likewise sent to all the persons named in the petition.

On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the execution of the will. The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and their marriage was never annulled. Thus Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public morals.

On July 22, 1992, the trial court issued an ordering declaring that it had acquired jurisdiction over the petition and, therefore, allowed the presentation of evidence. After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.

The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes, and, therefore, their relationship was an adulterous one. Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and his two attesting witnesses during the trial.

In both cases, the common denominator is the immoral meretrecious, adulterous and adulterous and illicit relationship existing between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid.[4]

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The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary to law and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present any competent evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato Reyes.

On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial courts decision admitting the will for probate but the modification that paragraph II including subparagraphs (a) and (b) were declared valid.The appellee court stated:

Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[5]

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.

Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record. Torcuato Reyes and Asuncion Oning Reyes were collateral relatives up to the fourth civil degree.Witness Gloria Borromeo testified that Oning Reyes was her cousin as her mother and the latters father were sister and brother. They were also nieces of the late Torcuato Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes was void ab initio as it was against public policy pursuant to Article 38 (1) of the Family Code. Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contact any valid marriage with the latter. Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were sufficient to destroy the presumption of marriage. To further support their contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle.[6]

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. [7] Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator. It does not determine nor even by implication prejudge the validity or efficacy of the wills provisions.[8] The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved and allowed. There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the

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probate of the will may become a useless ceremony if it is intrinsically invalid. [9] The intrinsic validity of a will may be passed upon because practical considerations demanded it as when there is preterition of heirs or the testamentary provisions are doubtful legality.[10]Where the parties agree that the intrinsic validity be first determined, the probate court may also do so.[11] Parenthetically, the rule on probate is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will.[12]

The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As a result, the declaration of the testator that Asuncion Oning Reyes was his wife did not have to be scrutinized during the probate proceedings. The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic validity and which need not be inquired upon by the probate court.

The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he had been living in concubinage.[13] To remand the case would only be a waste of time and money since the illegality or defect was already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion Oning Reyes. There was never an open admission of any illicit relationship. In the case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the devisee.

We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married to another during the time she cohabited with the testator. The testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion.Thus:

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The foregoing testimony cannot go against the declaration of the testator that Asuncion Oning Reyes is his wife. In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the husband is competent evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[14]

In the elegant language of Justice Moreland written decades ago, he said-

A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life making the declarations by word of mouth as they appear in the will. That was the special purpose of the law in the creation of the instrument known as the last will and testament. Men wished to speak after they were dead and the law, by the creation of that instrument, permitted them to do so. xxx All doubts must be resolved in favor of the testators having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).

Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review. This Court would no try the case a new or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts. The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners have not shown in this case.[15]

Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the challenged decision.

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of merit.

SO ORDERED.

EN BANC

G.R. No. 1439            March 19, 1904

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ANTONIO CASTAÑEDA, plaintiff-appellee, vs.JOSE E. ALEMANY, defendant-appellant.

Ledesma, Sumulong and Quintos for appellant.

The court erred in holding that all legal formalities had been complied with in the execution of the will of Doña Juana Moreno, as the proof shows that the said will was not written in the presence of under the express direction of the testratrix as required by section 618 of the Code of Civil Procedure.

Antonio V. Herrero for appellee.

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

WILLARD, J.:

(1) The evidence in this case shows to our satisfaction that the will of Doña Juana Moreno was duly signed by herself in the presence of three witnesses, who signed it as witnesses in the presence of the testratrix and of each other. It was therefore executed in conformity with law.

There is nothing in the language of section 618 of the Code of Civil Procedure which supports the claim of the appellants that the will must be written by the testator himself or by someone else in his presence and under his express direction. That section requires (1) that the will be in writing and (2) either that the testator sign it himself or, if he does sign it, that it be signed by some one in his presence and by his express direction. Who does the mechanical work of writing the will is a matter of indifference. The fact, therefore, that in this case the will was typewritten in the office of the lawyer for the testratrix is of no consequence. The English text of section 618 is very plain. The mistakes in translation found in the first Spanish edition of the code have been corrected in the second.

(2) To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. It could not in this case make any decision upon the question whether the testratrix had the power to appoint by will a guardian for the property of her children by her first husband, or whether the person so appointed was or was not a suitable person to discharge such trust.

All such questions must be decided in some other proceeding. The grounds on which a will may be disallowed are stated the section 634. Unless one of those grounds appears the will must be allowed. They all have to do with the personal condition of the testator at the time of its execution and the formalities connected therewith. It follows that neither this court nor the court below has any jurisdiction in his proceedings to pass upon the questions raised by the appellants by the assignment of error relating to the appointment of a guardian for the children of the deceased.

It is claimed by the appellants that there was no testimony in the court below to show that the will executed by the deceased was the same will presented to the court and concerning which this hearing was had. It is true that the evidence does not show that the document in court was presented to the witnesses and identified by them, as should have been done. But we think that we are justified in saying that it was assumed by all the parties during the trial in the court below that the will about which the witnesses were testifying was the document then in court. No suggestion of any kind was then made by the counsel for the appellants that it was not the same instrument. In the last question put to the witness Gonzales the phrase "this will" is used by the counsel for the appellants. In their argument in that court, found on page 15 of the record, they treat the testimony of the witnesses as referring to the will probate they were then opposing.

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The judgment of the court below is affirmed, eliminating therefrom, however, the clause "el cual debera ejecutarse fiel y exactamente en todas sus partes." The costs of this instance will be charged against the appellants.

G.R. No. L-2071             September 19, 1950

Testate estate of Isabel V. Florendo, deceased. TIRSO DACANAY, petitioner-appellant, vs.PEDRO V. FLORENDO, ET AL., oppositor-appellees.

Sotto and Sotto for appellant.Alafriz and Alafriz for appellees.

OZAETA, J.:

This is a special proceeding commenced in the Court of First Instance of La Union to probate a joint and reciprocal will executed by the spouses Isabel V. Florendo and Tirso Dacanay on October 20, 1940. Isabel V. Florendo having died, her surviving spouse Tirso Dacanay is seeking to probate said joint and reciprocal will, which provides in substance that whoever of the spouses, joint testators, shall survive the other, shall inherit all the properties of the latter, with an agreement as to how the surviving spouse shall dispose of the properties in case of his or her demise.

The relatives of the deceased Isabel V. Florendo opposed the probate of said will on various statutory grounds.

Before hearing the evidence the trial court, after requiring and receiving from counsel for both parties written arguments on the question of whether or not the said joint and reciprocal will may be probated in view of article 669 of the Civil Code, issued an order dismissing the petition for probate on the ground that said will is null and void ab initio as having been executed in violation of article 669 of the Civil Code. From that order the proponent of the will has appealed.

Article 669 of the Civil Code reads as follows:

ART. 669. Two or more persons cannot make a will conjointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.

We agree with appellant's view, supported by eminent commentators, that the prohibition of article 669 of the Civil Code is directed against the execution of a joint will, or the expression by two or more testators of their wills in a single document and by one act, rather than against mutual or reciprocal wills, which may be separately executed. Upon this premise, however, appellant argues that article 669 of the Civil Code has been repealed by Act. No. 190, which he claims provides for and regulates the extrinsic formalities of wills, contending that whether two wills should be executed conjointly or separately is but a matter of extrinsic formality.

The question now raised by appellant has recently been decided by this court adversely to him in In re Will of Victor Bilbao, supra, p. 144. It appears in that case that on October 6, 1931, the spouses Victor Bilbao and Ramona M. Navarro executed a will conjointly, whereby they directed that "all of our respective private properties both real and personal, and all of our conjugal properties, and any other property belonging to either or both of us, be given and transmitted to anyone or either of us, who may survive the other, or who may remain the surviving spouse of the other." That will was denied probate by the Court of First Instance of Negros Oriental on the ground that it was

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prohibited by article 669 of the Civil Code. The surviving spouse as proponent of the joint will also contended that said article of the Civil Code has been repealed by sections 614 and 618 of the Code of Civil Procedure, Act No. 190. In deciding that question this court, speaking through Mr. Justice Montemayor, said:

We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil Code on the same subject matter, resulting in the complete repeal of said Civil Code provisions. In the study we have made of this subject, we have found a number of cases decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but have also been applied side by side with the provisions of the Code of Civil Procedure.

x x x           x x x           x x x

The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The reason for this provision, especially as regards husband and wife, is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other.

Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at least not expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is still in force. And we are not alone in this opinion. Mr. Justice Willard as shown by his Notes on the Civil Code, on page 48 believes that this article 669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33, favorably cite Justice Willard's opinion that this article is still in force. Judge Camus in his book on the Civil Code does not include this article among those he considers repealed. Lastly, we find that this article 669 has been reproduced word for word in article 818 of the New Civil Code (Republic Act No. 386). The implication is that the Philippine Legislature that passed this Act and approved the New Civil Code, including the members of the Code Commission who prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those of the Code of Civil Procedure.

In view of the foregoing, the order appealed from is affirmed, with costs against the appellant.

G.R. No. L-25966             November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator, and LUZ LOPEZ DE BUENO, heir, appellee, vs.MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.Araneta and Zaragoza for appellee.

 

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STREET, J.:

This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the same by accredition and in the character of universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno, and Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will and testament, in the second clause of which he declared:

I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772).

Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall be valid when made by a ward in favor of his guardian before the final accounts of the latter have been approved. This provision is of undoubted application to the situation before us; and the provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but a special incapacity due to the accidental relation of guardian and ward existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion take place in a testamentary succession, first when the two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and secondly, when one of the persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special designation of shares. In addition to this, one of the persons named as heir has predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testator's death. This article (982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half which pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno entitled to the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the two, dealing, as it does, with the general topic of intestate succession while the latter is more specific, defining the particular conditions

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under which accretion takes place. In case of conflict, therefore, the provisions of the former article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can only occur when accretion is impossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn between incapacity to succeed and incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than 982. We are of the opinion that the case cannot be made to turn upon so refined an interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a general disability to succeed but an accidental incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestate succession.

The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the conclusion that the right of accretion with regard to portions of an inheritance left vacant by the death or disqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, without being limited, to the extent supposed in appellant's brief, by provisions of the Code relative to intestate succession (Manresa, Comentarios al Codigo Civil Español, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if nonexistent at the time of the making of the will, or he renounces the inheritance or legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.) lawphil.net

In conclusion it may be worth observing that there has always existed both in the civil and in the common law a certain legal intendment, amounting to a mild presumption, against partial intestacy. In Roman law, as is well known, partial testacy systems a presumption against it, — a presumption which has its basis in the supposed intention of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

G.R. No. L-39033             November 13, 1933

In re will of the late Matea Abella. MONS. SANTIAGO SANCHO, applicant-appellee, vs.MARCIANA ABELLA, opponent-appellant.

Sotto and Astilla for appellant.B. Quitoriano for appellee.

 

VILLA-REAL, J.:

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This is an appeal taken by the opponent Marciana Abella from the judgment rendered by the Court of First Instance of Ilocos Sur, the dispositive part of which reads as follows:

Wherefore, this court is of the opinion, and so holds, that the opposition filed by Marciana Abella is without merit and, therefore, it is hereby denied. The application filed herein is granted and the document, Exhibit A, is hereby ordered and decreed probated as the last will and testament of the late Matea Abella. So ordered.

In support of her appeal, the appellant assigns the following alleged errors in the decision of the court a quo, to wit:

1. The lower court erred in holding that Matea Abella was in the full enjoyment of her mental faculties and executed the document, Exhibit A, as a true expression of her last will.

2. The lower court erred in holding that the requirements of the law have been complied with in the execution of the will, Exhibit A.

3. The lower court erred in holding that when the late Matea Abella affixed her alleged signatures to the will, Exhibit A, she did not act under the illegal and undue influence of certain legatees.

4. The lower court erred in decreeing the probate of the will, Exhibit A.

The following facts have been proven by a preponderance of evidence presented during the trial, to wit:

The testatrix, Matea Abella, resident of the municipality of Sinait, Ilocos Sur, had been informed that Dr. Antonio Querol of San Fernando La Union, was a good physician. On April 13, 1932, she left her home situated in the said municipality of Sinait, accompanied by her niece, Filomena Inay, to consult the said physician in his clinic in San Fernando, La Union, stopping at the convent of the parish church of the said municipality, in charge of Father Cordero with whom she was acquainted he having been the parish priest of Sinait. During her stay in the said convent, she went to Dr. Antonio Querol's clinic twice within the period of one week accompanied by her aforesaid niece, Filomena Inay, to consult the said physician who, after submitting her to a general medical examination, found that she was suffering from dyspepsia and cancer of the stomach.

On or about April 26, 1932, Matea Abella ordered a sexton of the convent to call Attorney Teodoro R. Reinoso to whom she expressed her desire to make a will, in the presence of the Father Cordero's sister, Father Zoilo Aguda, Macario Calug and the fiscal of the convent. Inasmuch as the aforesaid attorney had to attend to other business, he could not finish his interview with the testatrix on the first day and had to continue it the following day, also in the presence of Father Cordero, his sister, Filomena Inay and some children who were then at the convent. Inasmuch as he did not finish the interview on the second day, the said attorney returned again on the afternoon of the 28th and continued it in the presence of the same persons who entered and left the sala. At the end of the interview, Matea Abella ordered he niece, Filomena Inay, to bring her some papers which were in her trunk, which she delivered to the said attorney. After the will had been drafted in Ilocano, the dialect of the testatrix, Macario Calug read it to her and she approved it. When the will had been copied clean, it was again read to the testatrix and she express her approval thereof, but inasmuch as it was rather late at night, she did not care to sign the same suggesting that it be postponed to the following day, April 29, 1932, which was done. At about 7:30 o'clock on the morning of April 29, 1932, the signing of the will took place in the corridor of the convent. The testatrix Matea Abella was the first to sign it on a table in the presence of each and every one of the instrumental witnesses thereto and of other persons, including Father Cordero. After the testatrix, each of the instrument witnesses signed in the presence of the testatrix and of each and every one of the other witnesses. After the will had been signed, Attorney Teodoro R. Reinoso delivered the original and the copies thereof to the testatrix, retaining one for his file. On July 3, 1932, Matea Abella died of the senile debility in the municipality of Sinait at the age of 88 years.

The opponent herein attempted to prove that the testatrix was deaf and that her eyesight was defective; that when one moved away from her and again approached her she was unable to recognize him; that it was necessary to shout into her ear to call her for meals; that she used to urinate on her clothes without being aware of it; that she had a very poor memory inasmuch as she used to try to collect from her debtors in spite of the fact that they had already paid their debts; that once, although she had sold a parcel of land for P60 she said she had sold it for P160;

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that she was unable to go downstairs without assistance; that when she was called at mealtime she used to answer: "Why, I have already eaten"; that she could not remember her properties nor the names of her tenants; that she could no longer read; that she often repeated to her tenants the same questions regarding their crops; that she had been suffering from the disabilities for more than two months previous to her death; that the deceased complained of headache and of stomachache; that she already began to be dotty five years before, and particularly a few days previous to her death; that in her will she bequeathed properties which she had already donated to other persons.

We are face to face with two divergent theories regarding the mental state of the testatrix Matea Abella at the time of the execution of her will, Exhibit A. The opponent claims that, inasmuch as the testatrix was 88 years of age when she made her will, she was already suffering from senile debility and therefore her mental faculties were not functioning normally anymore and that she was not fully aware of her acts. As an indication of her senile debility, she attempted to prove that the testatrix had very poor memory in connection with her properties and interest; that she could not go downstairs without assistance, and that she could not recall her recent acts.

On the other hand, as to the mental sanity of the testatrix at the time of the execution of her will, we have the undisputed fact of her having left her home in Sinait, Ilocos Sur, on April 13, 1932, in order to go to San Fernando, La Union, to consult Dr. Antonio Querol — of whose ability she had heard so much — regarding her headaches and stomach trouble, stopping at the convent of the parish church; the fact of her having walked twice to the aforesaid doctor's clinic, accompanied by her niece, Filomena Inay; the fact that she had personally furnished the aforesaid doctor with all the necessary data regarding the history of her illness the fact of her having brought with her in her trunk the deeds to her properties; the fact of her having called for Attorney Teodoro R. Reinoso; the fact of her having personally furnished said attorney all the data she wished to embody in her relative to her properties and the persons in whose favor she wished to bequeath them; the fact of her not wishing to sign her will on the night of April 28, 1932, but the following day, in order to be able to see it better, and the fact of her having affixed her signature, in her own handwriting, to the original as well as to the copies of her will which consisted of nine pages. All these data show that the testatrix was not so physically weak, nor so blind, nor so deaf, nor so lacking in intelligence that she could not, with full understanding thereof, dispose of her properties and make a will. Neither senile debility, nor blindness, nor deafness, nor poor memory, is by itself sufficient to incapacitate a person for making his ill (Avelinovs. De la Cruz, 21 Phil., 521; Bagtas vs. Paguio, 22 Phil., 227; Jocson vs. Jocson, 46 Phil., 701; Amata and Almojuela vs. Tablizo, 48 Phil., 485; Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772; 28 R.C.L., p. 94, par. 44). The mere fact that in her will Matea Abella disposed of properties, which she had already donated to other persons at a prior date, is not an indication of mental insanity. At most it constitutes forgetfulness or a change of mind, due to ignorance of the irrevocability of certain donations. lawphil.net

It is insinuated that the testatrix has been unduly influenced in the execution of her will. There is nothing in the records establishing such claim either directly or indirectly. The fact of her having stopped at the convent of the parish church of San Fernando, La Union, is not unusual in the Philippines where, due to lack of hotels, the town convents are usually given preference by strangers because they are given better accommodations and allowed more freedom. In the present case, the testatrix Matea Abella was a stranger in San Fernando, La Union. Inasmuch as Father Cordero, the parish priest of the said town, was well known to her having served in the church of Sinait, Ilocos Sur, in the same capacity, she did not have any difficulties in obtaining accommodations in his convent. The fact that Matea Abella stopped at a convent and enjoyed the hospitality of a priest who gave her accommodations therein, nor the fact that the will was executed in the convent in question in the presence of the parish priest and witnessed by another priest, could certainly not be considered as an influence which placed her under the obligation to bequeath of her property to the bishop of said diocese.

In view of the foregoing considerations, we are of the opinion and so hold: (1) That neither senile ability, nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish the presumption that the person suffering therefrom is not in the full enjoyment of his mental faculties, when there is sufficient evidence of his mental sanity at the time of the execution of the will; and (2) that neither the fact of her being given accommodations in a convent, nor the presence of the parish priest, nor a priest acting as a witness, constitutes undue influence sufficient to justify the annulment of a legacy in favor of the bishop of a diocese made in her will by a testatrix 88 years of age, suffering from defective eyesight and hearing, while she is stopping at a convent within the aforestated diocese.

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Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the costs against the appellant. So ordered.

G.R. Nos. L-46430-31 July 30, 1979

FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners, vs.COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents.

Rafael Triumfante for petitioners.

Sabido-Sabido & Associates and Madrid Law Office for private respondents.

 

GUERRERO, J.:1äwphï1.ñët

This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the firing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs.

The antecedent events leading to the filing of these two consolidated actions are the following.

On November 25, 1949, Don Jesus Alsua and his wife, Doñ;a Florentina Rella, both of Ligao, Albay, together with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Doñ;a Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: têñ.£îhqwâ£

(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them signed by the spouses and all the above named heirs in the left margin of every page (parafo primers).

(2) An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception of five parcels of land Identified with the figures of 1 to 5

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and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late Doñ;a Tinay (segundo parafo).

(3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro).

(4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid Possible misunderstanding among their children concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an extrajudicial partition of all the properties described in Annex "A" thereto under the following terms and conditions: (Parafo quinto):

To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.

To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.

To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.

To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33-47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. têñ.£îhqwâ£

(a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs as described in the preceding paragraph, constitute one half of the properties described in Annex "A", including any amount of cash deposited.

(b) That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of the conjugal properties but includes the paraphernal properties — waiving now and forever any complaint or claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted to each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves.

(c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the possession of the surviving spouse, including any amount in cash, are even less than the one- half that should correspond in absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the paraphernal properties of Doñ;a Tinay in the event the surviving spouse is Don Jesus.

(d) The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved for them (the spouses) should be considered as his or her legitimate participation in the conjugal properties and the fair compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shag be distributed in equal shares among the heirs upon his or her death unless said properties of some of them have been disposed of during the lifetime of the surviving spouse.

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(e) Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees.

(f) The provisions of this deed shall bind the successors of the herein heirs.

(g) In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become the absolute owner of the properties adjudicated to him under this deed.

On January 5, 1955, Don Jesus and Doñ;a Florentina, also known as Doñ;a Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wigs also declared that in the event of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided equally among the four children. The holographic will of Doñ;a Tinay written in Spanish reads, as translated: têñ.£îhqwâ£

TESTAMENT

I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide:

First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still living and they are Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without children.

Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property of the Province of Albay and in the City of Manila.

Third: That I institute as my heirs with right to inherit the following- my spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day, month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each and every clause contained in the said document.

Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to my spouse; and the other half to my children in equal parts.

Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond.

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IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. têñ.£îhqwâ£

(SGD.) FLORENTINA R. DE ALSUA

(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)

As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.

On May 21, 1956, the spouses Don Jesus and Doñ;a Tinay filed before the Court of First Instance of Albay their respective petitions for the probate of their respective holographic wins which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Doñ;a Florentina Ralla de Alsua, Petitioner).

On August 14, 1956, the spouses Don Jesus and Doñ;a Tinay executed their mutual and reciprocal codicils amending and supplementing their respective holographic wins. Again, the codicils similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don Jesus and Doñ;a Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the properties reserved for themselves.

The codicil executed by Doñ;a Tinay, written in Spanish reads, as translated: têñ.£îhqwâ£

CODICIL

This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of 1949) (and) even as the properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes an the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate.

That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in the event that the properties granted to one or any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be divided among my children as their inheritance from the free portion of my property.

I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.

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In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August 14,1956. têñ.£îhqwâ£

(SGD.) FLORENTINA RALLA DE ALSUA

(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)

And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and Doñ;a Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957, their respective holographic wins and the codicils thereto were duly admitted to probate.

Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960.

Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francesca as executrix to serve without a bond.

After all debts, funeral charges and other expenses of the estate of Doñ;a Tinay had been paid, all her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Doñ;a Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the estate of Doñ;a Tinay.

On May 6,1964, Don Jesus Alsua died.

On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Doñ;a Tinay, and all his children, Francisco, Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto in the partition of the estate of Doñ;a Tinay in December, 1959.

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On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of thirty- three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000.00 at only P2,000.00 per hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi City including the lot and the building presently occupied by the well-known "Mayon Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisco, the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their late father. In answer, Francisco claimed ownership over the same, alleging that she bought the properties from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on November 14, 1959.

After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the dispositive portion of which states: têñ.£îhqwâ£

WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:

1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for division and distribution of the estate of said testator;

2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068. are ordered jointly and severally to pay to the defendant, Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs.

On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus — têñ.£îhqwâ£

IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the net gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.

Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: têñ.£îhqwâ£

19

I. The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus Alsua.

II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will.

III. The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts.

IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W).

On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings No. 485, Testate Estate of Doñ;a Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua.

The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was still in the Court of Appeals, and We quote: têñ.£îhqwâ£

Finally, probate proceedings involve public interest, and the application therein of the rile of estoppel, when it win block the ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law.

The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: têñ.£îhqwâ£

'The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes, which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act.

One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'

The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as follows: têñ.£îhqwâ£

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

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

(2) If the testator was insane, or otherwise mentally incapable of making a wilt at the time of its execution;

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

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

(5) If the signature of the testator was procured by fraud,

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

The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: têñ.£îhqwâ£

... and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question, têñ.£îhqwâ£

On October 2, 1959, Doñ;a Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a list of all s properties with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S, Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted to divide his properties among his four children. He handed to them a list and on the left he indicated the name of the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the win in final form. He further told Atty, Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning of November 14, 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus.

Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting

21

witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran from problems of farming and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said: têñ.£îhqwâ£

'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser testigos de rni ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos egos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte.

On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, — one on the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set, — one on the margin of each of the nine pages, one at the end of the instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) imperial. It was also clearly established that when Don Jesus signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus and the two other attesting witnesses were present and Witnessing said Signing. The signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial as Notary Public with commission for the entire province of Albay, notarized the wilt and sealed it with his notarial seat which seal he brought along that morning. After all the three sets were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M.

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and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R)

which findings are supported by the evidence, - it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804- 806 of the New Civil Code. ... (CA Decision, pp. 13-16, as translated).

This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been executed with all the formal requirements of a valid will, are supported by the evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law.

Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Doñ;a Tinay together with their four children Francisco, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between the spouses themselves and the children under the terms and conditions and dispositions herein before stated and to implement its provisions, Don Jesus and Doñ;a Tinay subsequently executed separately their respective holographic wigs both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and upon the death of Doñ;a Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Doñ;a Tinay was approved by the probate court on July 6, 1960.

The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his holographic will of January 5, 1955 and his codicil of August 14, 1956, and further barring him from executing his new will and testament of November 14, 1959, now the subject of the probate proceedings elevated to this Court.

We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide as follows: têñ.£îhqwâ£

Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. ...

Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts.

Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with Article 1056.

All services not contrary to law or to good morals may also be the subject- matter of contract.

Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one who has made a prior will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a will or not.

Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further

23

added that jurisprudence is to the effect that the partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.

Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: têñ.£îhqwâ£

The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces, the defendants and appellants herein, was valid and enforceable.

Article 1056 of the Civil Code provides:

Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs.

The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine:

Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to in the section wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to their children the whole or a part of their property;

Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested.

Manresa comments on the same article as follows:

A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The Idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death, and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special for. realities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of.

24

It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death.

We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents.

Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties allotted to each child, We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Doñ;a Tinay which, as stated in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which provides as follows: têñ.£îhqwâ£

Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically described and in the amount of the encumbrances to be assumed by the donee expressed.

The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the donor.

If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in both instruments.

This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to the children what belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus and Doñ;a Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares.

Upon the death of Doñ;a Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her holographic win and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Doñ;a Tinay, only her estate was being settled, and not that of Don Jesus.

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We have carefully examined the provisions of the holographic will and codicil of Doñ;a Tinay and We find no indication whatsoever that Doñ;a Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: têñ.£îhqwâ£

Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y la otra mitad (1/2) para mis hijos en partes iguales.

For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one- half (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted provision, the children would only inherit together with Don Jesus whatever new properties Doñ;a Tinay would acquire after the execution of her will.

Likewise, the codicil of Doñ;a Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that part of the codicil: têñ.£îhqwâ£

Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este testamento.

Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de mi muerte.

Again for purposes of clarity and convenience, the above portion states: têñ.£îhqwâ£

I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death.

The children, therefore, would only receive equal shares in the remaining estate of Doñ;a Tinay in the event that she should be the surviving spouse. To stress the point, Doñ;a Tinay did not oblige her husband to give equally to the children, upon his death, all such properties she was bequeathing him.

Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Doñ;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Doñ;a Tinay bequeathed to Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by any condition obligation or proviso.

Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said Partition by making a holographic will and codicil with exactly the same provisions as those of Doñ;a Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of the new

26

Civil Code is clear: "A win may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at baralready been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested.

After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Doñ;a Tinay in her holographic will and codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another win expressly cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained by the probate court, the Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had been authenticated. Thus We declared inNuguid v. Nuguid, 17 SCRA 499: têñ.£îhqwâ£

The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity of the wilt Normally this comes only after the court has declared that the will has been duly authenticated. ...

... If the case were to be remanded for probate of the wilt nothing will be gained. On the contrary, this litigation win be protracted and for ought that appears in the record, in the event of probate or if the court rejects the will probability exists that the case win come up once again before us on the issue of the intrinsic validity or nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a behalf that we might as well meet head-on the time of the validity of the provisions of the will in question. ...

The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic wig of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca as executrix without bond.

Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. This being so, it must be presumed that the intention of Don Jesus in his last win was not to revoke the donations already made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Doñ;a Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose.

If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: têñ.£îhqwâ£

... nevertheless it would be venturesome for the court to advance its own Idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the latter will. ...

It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only functions of

27

the courts in these cases is to carry out the intention of the deceased as manifested in the wig. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into the fairness or unfairness of any devise or bequeast. The court should not sit in judgment upon the motives and sentiments of the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. ...

Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not snow himself to violate the previous agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisco and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the New Civil Code which provides as follows: têñ.£îhqwâ£

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act,

The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or partial imbecility from disease of body or from age-does not render a person incapable of making a will. têñ.£îhqwâ£

Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or Idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).

The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is of sound mind in the absence of proof to the contrary. In the case at bar, the acceptance by the respondent court of the findings of fact of the trial court on the due execution of the last win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit: têñ.£îhqwâ£

28

Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.

Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.

In rejecting probate of the wilt respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of fife" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in the properties under question to petitioner Franciso Alsua-Betts when the same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more sympathetic to Francisca so as to or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8."

We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic win and codicil were duly probated when he was still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had already assigned the same properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as evidence.

Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus and petitioner Francisco is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid.

It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are:

1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257);

29

2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);

3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);

4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);

5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and

6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).

In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the evidence on record and adduced during the trial.

Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 16, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of ?47,355.29, drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements on the back of the last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total consideration of P150,000.00.

The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francesca and discriminate against the other children. The two contracts of same executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration And even of he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable to Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue.

Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account.

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WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance Of Albay in Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents.

SO ORDERED.

G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix, petitioner-appellee, vs.MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ, legatees, oppositors- appellants.

 

ABAD SANTOS, J.:

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

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

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

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

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por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en atencion a que dicha propiedad fue creacion del querido padre del otorgante y por ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier memento vender a tercero los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisaarios.

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

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free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the testator's express win to give this property to them Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of his estate over which he could impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

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

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

The fideicommissary substitution is described in the Civil Code as follows:

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

33

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

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

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons:

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

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

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

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

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

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

34

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to costs.

SO ORDERED.

G.R. No. 76648 February 26, 1988

THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs.COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

 

GANCAYCO, J.:

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

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

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

SO ORDERED. 3

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

35

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

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

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

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

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

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

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

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

I

THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE.

II

THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.

III

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

IV

THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM

36

PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION.

V

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

VI

THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE.

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

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

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

Section 1, Rule 53 provides —

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

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

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in tracking them down;

4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly executed;

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

xxx xxx xxx 13

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

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affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.

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

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

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

The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time.

Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now conclusive. 20

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

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

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

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

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

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

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

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

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

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

We cannot subscribe to this contention. Art. 841 of the Civil Code provides —

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

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

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

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

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

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

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

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

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

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

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

SO ORDERED.