Dorotheo v. CA

GR No. 108581, December 8, 1999

FACTS:

Aniceta Reyes died in 1969 without her estate being settled. Thereafter, her husband Alejandro also

died. In 1977, Lourdes Dorotheo filed a special proceeding for the probate of Alejandro’s last will and

testament. The children of spouses filed theiropposition. The RTC ruled that Lourdes being not the wife

of Alejandro the will is intrinsically void; the oppositors are the only heir entitled to the

estate. Lourdesfiled a Motion for Consideration arguing that she is entitled to some compensation since

she took care of Alejandro prior to his death although they were not legally married to each other. This

was denied by the trial court. The CA dismissed her appeal for her failure to wile the same within the

extended period.

ISSUE:

May a last will and testament admitted to probate but declared intrinsically void in an order that has

become final and executor still be given effect?

RULING:

No. A final and executor decision or order can no longer be disturbed or reopened no matter how

erroneous it may be.

The Supreme Court ruled that the will of Alejandro was extrinsically valid but the

intrinsic provisions thereof are void. Alejandro gave all the property to the concubine. Such is invalid

because one cannot dispose what he does not own. In this case, the whole property is

the conjugal property of Alejandro and Aniceta. Such has become final and executor. The only instance

where a party interested in probate proceeding may have a final liquidation set aside is when he is left

out by reason of circumstances beyond his control or through mistake or inadvertence not imputable

to negligence with circumstances do not concur herein.

RAMIREZ vs. RAMIREZ

RAMIREZ vs. RAMIREZ

111 SCRA 82

FACTS:

Jose Ramirez a Filipino, died in Spain leaving only his widow Marcelle Ramirez, a French. In the

project partition, the property was divided into 2 parts: 1st part to the widow, and 2nd part to the

grandnephews the naked ownership. Furthermore, as to the usufruct of the 2 nd part, 1/3 was given to

the widow and 2/3 to Wanda de Wrobleski, an Austrian. The grandnephews opposed on the ground that

usufruct to Wanda is void because it violates the constitutional prohibition against the acquisition of

lands by aliens.

ISSUE:

WON the ground for the opposition is correct.

HELD:

No, it is not correct.

The SC held 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.

The SC upheld the usufruct in favor of Wanda because although it is a real right, it 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.

No. L-65995 July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO BORROMEO, petitioners,vs.HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA, respondents.

GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of Cebu.

G.R. No. 41171

Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu.

On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate of a one page document as the last will and testament left by the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof. The case was docketed as Special Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses.

Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held that the document presented as the will of the deceased was a forgery.

On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).

The testate proceedings was converted into an intestate proceedings. Several parties came before the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.

The following petitions or claims were filed:

1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition for declaration of heirs and determination of heirship. There was no opposition filed against said petition.

2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs and determination of shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.

4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos Borromeo represented by Jose Talam filed oppositions to this claim.

When the aforementioned petitions and claims were heard jointly, the following facts were established:

1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

TESTATE ESTATE OF ABADA vs. ABAJA

January 31, 2005

FACTS:

Abada executed his will in 1932. Abada died in 1940. It was asserted that the will of Abada does

not indicate that it was written in a language or dialect known to the testator and that the will was not

acknowledged before a notary public, citing Articles 804 and 806 of the New Civil Code.

ISSUE:

What law shall govern the validity of the will?

HELD :

The law that governs the validity of the will of Abada is the Code of Civil Procedure. Although

the laws in force at that time are the Civil Code of 1889 and Act No. 190 or the Code of Civil Procedure

(which governed the execution of wills before the enactment of the New Civil Code), the Code of Civil

Procedure repealed Article 685 of the Old Civil Code. Under the Code of Civil Procedure, the

intervention of a notary is not necessary in the execution of any will. Abada’s will does not require

acknowledgement before a notary public. Under Article 795, the validity of a will as to its form depends

upon the observance of the law in force at the time it is made.

Lopez vs. Liboro

81 PHIL 429 – Succession – Pagination of the Will – Witnesses to a Will – Language of the Will – Thumb

Mark as Signature

In 1947, Don Sixto Lopez executed a will where Jose Lopez was named an heir. Agustin Liboro

questioned the validity of the said will based on the following ground, among others:

1. The first sheet, which is also the first page) is not paged either in letters or in Arabic numerals.

2. That the witnesses to the will provided contradictory statements.

3. That Don Sixto used his thumb mark to sign the will.

4. There was no indication in the will that the language used therein is known by Don Sixto Lopez.

ISSUE: Whether or not the will is valid.

HELD: Yes, the will is valid.

1. The omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of

identification more trustworthy than the conventional numeral words or characters. The unnumbered

page is clearly identified as the first page by the internal sense of its contents considered in relation to

the contents of the second page. By their meaning and coherence, the first and second lines on the

second page are undeniably a continuation of the last sentence of the testament, before the attestation

clause, which starts at the bottom of the preceding page. Further, the first pages is captioned

“Testamento”.

2. The contradictions in the testimony of the instrumental witnesses as are set out in Liboro’s appelant’s

brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to

recall in the same order in which they occurred.

3. Don Sixto affixed his thumb mark to the instrument instead of signing his name. The reason for this was

that he was suffering from “partial paralysis.” There is nothing curious or suspicious in the fact that the

testator chose the use of mark as the means of authenticating his will. It was a matter of taste or

preference. Both ways are good.

4. There is no statutory requirement which prescribes that it must be expressly placed in the will that the

testator knows the language being used therein. It is a matter that may be established by proof aliunde.

5. Abangan vs. Abangan Digest6. Abangan v. Abangan7.8. Facts:9. 1. On September 1917, the CFI of Cebu admitted to probate Ana Abangan's will executed on July

1916. It is from this decision which the opponent appealed. It is alleged that the records do not show the testatrix knew the dialect in which the will was written.

10.11. Issue: Whether or not the will was validly probated12.13. YES. The circumstance appearing on the will itself, that it was executed in Cebu City and in the

dialect of the place where the testarix is a resident is enough to presume that she knew this dialect in the absence of any proof to the contrary. On the authority of this case and that of Gonzales v Laurel, it seems that for the presumption to apply, the following must appear: 1) that the will must be in a language or dialect generally spoken in the place of execution, and, 2) that the testator must be a native or resident of the said locality

Acop vs. Piraso, 52 Phil 660

DIGESTED CASE: ACOP vs. PIRASO January 16, 1929

FACTS: Sixto alleged on appeal that the lower court erred in saying that in order to be valid, the will in question should have been drawn up in the Ilocano dialect. The evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself understood in that dialect. It has been proved that the deceased Piraso did not know English.

HELD: The will is not valid. The decedent‘s alleged will, being written in English, a language unknown to the decedent, cannot be probated because it is prohibited by the law, which clearly requires that the will be written in the language or dialect known the testator. Nor can the presumption in favor of a will established by the SC in the case of Abangan vs. Abangan to the effect that the testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary. First, it was not proven that English is the language of Baguio where the deceased lived and where the will was drawn. The record contains positive proof that the testator knew no other language other than the Igorrote dialect, with a smattering of Ilocano. He did not know the English language in which the will was written.

SUROZA VS. HONRADO

10 SCRA 388 – Succession – Will Should be Written in a Language Known to the Testator

In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and lot to a

certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix in the said will

and she petitioned before CFI Rizal that the will be admitted to probate. The presiding judge, Honrado

admitted the will to probate and assigned Paje as the administratrix. Honrado also issued an ejectment

order against the occupants of the house and lot subject of the will.

Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in the

Veteran’s Hospital), learned of the probate proceeding when she received the ejectment order (as she

was residing in said house and lot).

Nenita opposed the probate proceeding. She alleged that the said notarial will is void because (a) the

instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the

only son of Marcelina, Agapito Suroza, is still alive and is the compulsory heir, (c) the notarial will is

written in English a language not known to Marcelina because the latter was illiterate so much so that

she merely thumbmarked the will, (d) the notary public who notarized will admitted that Marcelina

never appeared before him and that he notarized the said will merely to accommodate the request of a

lawyer friend but with the understanding that Marcelina should later appear before him but that never

happened.

Honrado still continued with the probate despite the opposition until testamentary proceeding closed

and the property transferred to Marilyn Sy.

Nenita then filed this administrative case against Honrado on the ground of misconduct.

ISSUE: Whether or not Honrado is guilty of misconduct for admitting into probate a void will.

HELD: Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary proceeding,

this showed his wrongful intent. He may even be criminally liable for knowingly rendering an unjust

judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by

reason of inexcusable negligence or ignorance.

The will is written in English and was thumb marked by an obviously illiterate Marcelina. This could have

readily been perceived by Honrado that that the will is void. In the opening paragraph of the will, it was

stated that English was a language “understood and known” to the testatrix. But in its concluding

paragraph, it was stated that the will was read to the testatrix “and translated into Filipino language.”

That could only mean that the will was written in a language not known to the illiterate testatrix and,

therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will

must be executed in a language or dialect known to the testator. Had Honrado been careful and

observant, he could have noted not only the anomaly as to the language of the will but also that there

was something wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to Agapito who

was still alive.

Honrado was fined by the Supreme Court.

Icasiano v. Icasiano DigestIcasiano vs. IcasianoG.R. No. L-18979 June 30, 1964

Facts:1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his appointment as executor thereof. It appears from the evidence that the testatrix died on September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the duplicated bore the required signatures, this proves that the omission was not intentional. Even if the original is in existence, a duplicate may still be admitted to probate since the original is deemed to be defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be probated.

The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will should be signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.

Barut v. Cabacungan DigestBarut vs. CabacunganG.R. L-6825 Febriary 15, 1912Ponente: SC Justice Moreland

Facts:1.Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger part of decedent's property. After this disposition, the testatrix revoked all other wills and stated that since she is unable to read nor write, the will was read to her and that she has instructed Severino Agapan, one of the witnesses to sign her name in her behalf.

2. The lower court ruled that the will is not entitled to probate on the sole ground that the handwriting of the person who signed the name of the testatrix does not appear to be that of Agapan but that of another witness.

Issue: Whether or not a will's validity is affected when the person instructed by a testator to write his name did not sign his name

HELD: No, it is immaterial who wrote the name of the testator provided it is written at her request and in her present, and in the presence of the witnesses. This is the only requirement under Sec. 618 of the Civil Code of procedure at that time.

IN RE WILL OF TAN DIUCO45 Phil 807

FACTS:1. Mamerta Base instituted an action for the probate of the will of Chinaman Tan Duico.2. The court denied the probate of the will on the ground that said will was not signed by three instrumental witnesses.

3. The document was signed by Simplicia Sala by order of the testator, whose name is before the said signature, by reason of the latter’s incapacity on account of his weakness and the trembling of his hand.4. The testator also stated that he directed Simplicio Sala to sign it in his name and in the presence of three witnesses who also signed with him at the bottom of said document, and on the left margin of each of its three pages correlatively numbered in letter by Simplicio Sala in the name of the testator Tan Duico and by the three other witnesses.

ISSUE:Was the will not signed by three instrumental witnesses?

HELD:In dealing with attestation, the law does not say that the instrumental witnesses must be different from those who signed the attestation clause, for in the first part of said section, after speaking of the signature of the testator or the person signing in his place, it adds” and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other,” from which it clearly follows that the same witnesses who signed on the left margin of each page of the document presented by the testator to them as his will, must be the ones who should sign the attestation clause, inasmuch as they alone can certify the facts to be stated in said clause, for having taken a direct part therein, as they saw the testator sign the will, or the person requested by him to sign all the sheets of the will and affirm that it was signed under his express direction in the presence of said witnesses and that all the sheets thereof had also been signed by them in the presence of said testator and of each of them.

GARCIA VS. LACUESTA

90 Phil 189 – Succession – Signing Using an X Mark

Antero Mercado left a will dated January 3, 1943. The will appears to have been signed by Atty.

Florentino Javier as he wrote the name of Antero Mercado and his name for the testatior on the will.

HOWEVER, immediately after Antero Mercado’s will, Mercado himself placed an “X” mark.

The attestation clause was signed by three instrumental witnesses. Said attestation clause states that all

pages of the will were “signed in the presence of the testator and witnesses, and the witnesses in the

presence of the testator and all and each and every one of us witnesses.” The attestation clause

however did not indicate that Javier wrote Antero Mercado’s name.

ISSUE: Whether or not the will is valid.

HELD: No. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.

Florentino Javier to write the testator’s name under his express direction, as required by Section 618 of

the Code of Civil Procedure.

But is there really a need for such to be included in the attestation clause considering that even though

Javier signed for Antero, Antero himself placed his signature by virtue of the “X” mark, and by that,

Javier’s signature is merely a surplusage? That the placing of the “X” mark is the same as placing

Antero’s thumb mark.

No. It’s not the same as placing the testator’s thumb mark. It would have been different had it been

proven that the “X” mark was Antero’s usual signature or was even one of the ways by which he signs

his name. If this were so, failure to state the writing by somebody else would have been immaterial,

since he would be considered to have signed the will himself.

Balonan vs. Abellana GR No. L-15153, August 31, 1960

Facts: A 2-page Will and Testament by the testatrix Anacleta Abellana was sought to be probated at rhe CFI of Zamboanga City. ON the second page, which is the last page of the Will, on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase 'Por la Testadora Anacleta Abellana' (for the tetattrix Anacleta Abellana). (The CFI admitted the probate of the will. Hence, this appeal, the petitioner contending that the signature of Juan A. Abello on top of the phrase ‘por la tetadora Anacleta Abellana did not comply with the requirements of the law prescribing the manner in which it ill be executed.)

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

HELD: The present law, Article 805 of the Civil Code, in part provides as follows:

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

In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).

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

It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.

Wills Case Doctrines

Art. 774Estate of K. H. Hemady v. Luzon Surety (1956) [6]· The responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him. Heirs succeed not only to the rights of the deceased but also to his obligations.· General rule: a party’s contractual rights and obligations are transmissible to the successors.· Exceptions under Art. 1311:1) Nature of the obligation2) Intransmissibility by stipulation of the parties3) Obligation is not transmissible by operation of law

Art. 777Unson v. Del Rosario (1953) [12]The law in force at the time of the decedent’s death will determine who the heirs should be.· Art. 2253 provides that rights which are declared for the first time by the new Civil Code shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. In instant case, M’s right of ownership over the lands became vested in 1945 upon the death of her husband. The new right in favor of the illegitimate children by the deceased cannot be asserted to the impairment of the vested right of M over the lands in dispute.

De Borja v. Vda de Borja (1972) [14]Ownership passes to the heir at the very moment of death, who therefore, from that moment acquires the right to dispose of his share· Hereditary share in a decedent’s estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest. Thus, there is no legal bar to a successor (with requisite contracting capacity) disposing his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate.

Bonilla v. Barcena (1976) [16]The heirs have the right to be substituted for the deceased as party on an action that survives.· While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion.· The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. Thus, when F died, her claim or right to the parcel s of land in litigation was not extinguished by her death but was transmitted to her heirs upon her death.

Her heirs have thus acquired interest in the properties in litigation and became parties-in-interest in the case.· The question as to whether an action survives or not depends on the nature of the action and the damage sued for.1) Survive: wrong complained of affects primarily and principally property and property rights, the injuries to the person being merely incidental2) Not survive: injury complained of is to the person, the property and rights of property affected being incidental.· In instant case, an action to quiet title over land in litigation affects primarily and principally property and property rights, and therefore is one that survives even after F’s death.

Art. 804Suroza v. Honrado (1981) [41]Art. 804 provisions are mandatory. Consequently, failure to comply with the two requirements nullifies the will.· The will on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself.· A judge who admits to probate such a will should face disciplinary action. In the absence of opposition, the judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

Abangan v. Abangan (1919) [46]It may sometimes be presumed that the testator knew the language in which the will was written.· The circumstance appearing in the will itself that the same was executed in Cebu and in the dialect of this locality where the testatrix was a neighbor [sic] is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which the will was written.

RFB: same ruling in Gonzales v. Laurel (1923). On the authority of these cases it seems that, in order for the presumption to apply, the following must appear:1) The will must be in language or dialect generally spoken in the place of execution; and2) The testator must be a native or resident of said locality

Art. 806Payad v. Tolentino (1936) [49]Thumb mark as signature.· Testatrix, assisted by counsel, placed her thumb mark on each and every page of the questioned will and that said counsel merely wrote her name to indicate the place where she placed said thumb mark. In other words, counsel did not sign for the testatrix. She signed by placing her thumb mark on each and every page thereof. “A statute requiring a will to be ‘signed’ is satisfied if the signature is made by the testator’s mark.” It is clear, therefore, that it was not necessary that the attestation clause in question should state that the testatrix requested her counsel to sign her name inasmuch as the testatrix signed

the will in question in accordance with law.

Matias v. Salud (1958) [50]· The legal requisite that the will should be signed by testator is satisfied by a thumbprint or other mark affixed by him; and that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that another person wrote the testator’s name at his request.· In the instant case, it was shown that the herpes zoster that afflicted the right arm and shoulder of the testatrix made writing a difficult and painful act, to the extent that, after writing one signature on the second page, she dropped the pen because of an attack of pain that lasted many minutes, and evidently discouraged attempts to sign.· It is to be conceded that where a testator employs an unfamiliar way of signing, and both the attestation clause and the will are silent on the matter, such silence is a factor to be considered against the authenticity of the testament; but the failure to describe the unusual signature by itself alone is not sufficient to refuse probate when the evidence for the proponent fully satisfies the court that the will was executed and witnessed as required by law.

Garcia v. Lacuesta (1951) [54]A cross as signature.· It is not here presented that the cross appearing on the will is the usual signature of the testator or even one of the ways by which he signed his name. The mere sing of a cross cannot be likened to a thumbmark, because the cross cannot and does not have the trustworthiness of a thumbmark.

Barut v. Cabacungan (1912) [56]When agent must write.· As regards the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of the three witnesses and that they attested and subscribed it in her presence and in the presence of each other.· It may be wise, as a practical matter that the one who signs the testator’s name signs also hi own; but that is not essential to the validity of the will.

Nera v. Raymundo (1911) [61]Signing in the presence of witnesses· Jaboneta v. Gustilo:

“The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical position with relation to each other at the moment of inscription of each signature.”· The position of the parties with relation to each other at the moment of the subscription of each signature must be such that they may see each other sign if they choose to do so. Jaboneta doctrine: the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the

presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting their eyes in the proper direction they could have seen each other sign.

Icasiano v. Icasiano (1964) [64]· The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. That the failure of the witness to sign page three was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page.RFB: The Icasiano holding cannot, and should not, be taken as a departure from the rule that the will should be signed by the witnesses on every page. The carbon duplicate was regular in all aspects. A cavalier disregard of the formal requirements of wills in reliance on Icasiano is not recommended.

DIGESTED CASE: GABRIEL vs. MATEO December 16, 1927

FACTS: According to the oppositors, the attesting witnesses testified that the decedent signed before they did. However, based on the will, the attesting witnesses signed before the testator since the latter‘s signature tend to rise when it reaches a level with an attesting witnesses‘ signature. The testator had to write her surname upwards in order to avoid interfering with that Felicisimo, one of the witnesses. It was also contended that there were apparently different kinds of ink used by the testatrix in her signature and by the attesting witnesses.

HELD: The will is valid. It may be inferred with equal, if not greater, logic that the testatrix signed before him, and when it came to the witness Gabriel's turn, he, finding the space below the testatrix's signature free, signed his name there. On the other hand, it may be noted that the testatrix's other signature at the bottom of the will also shows a more or less marked tendency to rise, notwithstanding the fact that there was no signature with which she might interfere if she continued to write in a straight horizontal line.

(According to Ma‘am‘s notes: The witnesses may sign ahead of the decedent and vice-versa as long as it is done in one single, contemporaneous or continuous act. The order of the signing is of no material so long as the execution of the will constitutes only one single transaction.) At all events, even admitting that there is a certain question as to whether the attesting witnesses signed before or after the testatrix, or whether or not they signed with the same pen and ink, these are details of such trivial importance,

considering that this will was signed two years before the date on which these witnesses gave their testimony, that it is not proper to set aside the will for this reason alone.

DIGESTED CASE: IN RE ESTATE OF SAGUINSIN:

Facts:

This involves the petition for probate of the will of Remigia Saguinsin. The will was contained in 3 pages in 2 sheets of paper. The first and third pages were signed on the left margin by the testatrix and 3 witnesses. However, the second page on the reverse side of the first page in the first sheet, was not signed. The pages were also not numbered. LC declared that it could not be admitted into probate for not being numbered. It ruled that what was written on the second page engenders doubt whether what was written thereon was ordered written by the testatrix or only subsequently added.

Issue: May the will be probated? NO.

Rationale:

Act No. 2645 requires that “The testator or the person required by him to write his name and the instrumental witnesses of the will shall also sign on each and every page thereof, on the

left margin, and said pages shall be numbered correlatively in letters, placed on the upper part of each sheet.” In this case, the second page lacks authenticity for not having the required signatures on the second page. What must be signed is each page, including the reverse side if used, not merely each sheet. This is to ensure that no fraudulent insertion was made and to guarantee the authenticity of all that is written.

COMPARED TO ABANGAN CASE:

Facts:

A will consisted of 2 pages. The 1st page is the disposition signed by the testator at the bottom. Second page is the attestation signed by the witnesses.

Issue:

There were no signatures on the left margin. According to the oppositors the signatures should also appear on the left margin.

Ruling:

It is enough that the signatures appear on each and every page of the will. The purpose here is to identify that indeed the testator and the witnesses signed the will.

No dissenting opinion

CAGRO CASE:

Facts:

The signatures instead at the bottom, the signatures were on the margin.

Issue:

The signatures should be at the bottom so that there were signatures on the left and at the bottom.

Ruling:

The main text of Cagro v. Cagro, it was considered a Fatal defect by the Supreme Court. According to the SC, these signatures in order to be in compliance with requirement of the law, aside from signatures on the left margin, you should still sign at the bottom. However, there were strong dissenting opinions to the effect that to require that the signatures of the witnesses aside from the left margin should also appear at the bottom is TOO TECHNICAL. It will not serve the purpose of the law because what is important is that the signature should appear on each and every page and this purpose is accomplished by affixing the signature on the left.

Cagro v. Cagro (1953) [68]The signatures of the witnesses must be at the bottom of the attestation clause.· Fact: signature of the three witnesses do not appear on the bottom of the attestation clause, but the page containing the clause is signed by the witnesses on the left-hand margin.· The attestation clause is “a memorandum of the facts attending the execution of the will” required by law to be made by the attesting witnesses, and it must necessarily bear their signature. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signature at the bottom thereof negatives their participation.· The signatures on the left-hand margin cannot be deemed as their signature to the clause because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

· Dissenting opinion of Bautista Angelo: (a) substantial compliance; (b) the uncontradicted testimony of the witnesses that the clause was already written in the will when the same was signed obviates fear of the majority that the clause may have been only added on a subsequent occasion and not at the signing of the will.

Javellana v. Ledesma (1955) [70]Acknowledgement before a notary public.· Fact: Codicil signed by testatrix and witnesses at the hospital; the notary public brought the codicil to his office, and signed and sealed it there.· Whether or not the notary signed the certification of acknowledgement in the presence of the testatrix and the witnesses does not affect the validity of the codicil. The Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act.· The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is not part of the acknowledgement itself nor of the testamentary act.RFB: (a) ratio: The certification of acknowledgement need not be signed in the presence of the testator and the witnesses; (b) obiter: Art. 806 does not require that the testator and the witnesses must acknowledge on the same day that it was executed.

Cruz v. Villasor (1973) [72]The notary public cannot be counted as one of the attesting witnesses.· The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. If the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will.· Furthermore, the function of the notary public is, among others, to guard against any illegal or immoral arrangement. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of his own act.· To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the Article 805 requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will.

Art. 808Garcia v. Vasquez (1970) [75]Provision of Article 808 mandatory.· Fact: testatrix’s vision was mainly for viewing distant objects and not for reading print.· For all intents and purposes of the rules on probate, the testatrix was not unlike a blind testator, and the due execution of her will would have required observance of Article 808. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as

when he is illiterate) , is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes.

Alvarado v. Gaviola (1993) [80]The requirement has been liberally applied, the SC declaring substantial compliance to be sufficient.· Facts: The lawyer who drafted the will and subsequent codicil read them aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them.· Substantial compliance is acceptable where the purpose of the law has been satisfied, because the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy testamentary privilege.· It was not only the lawyer who read the documents. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. With four persons following the reading word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing in the typewritten documents.

Art. 809Caneda v. CA (1993) [87]· Fact: petitioners aver that the attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.· SC agrees with petitioners. The absence of a statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another is a fatal defect which must necessarily result in the disallowance of the will. Such defect in the attestation clause cannot be characterized as merely involving form of the will or the language used therein which would warrant the application of the substantial compliance rule contemplated in Art. 809. The defect is not only in the form or the language of the attestation clause but the total absence of a specific element required by Art. 805 to be specifically stated in the attestation clause.· Proper interpretation of the substantial compliance rule in Art. 809: Omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde (“from another source, from elsewhere, from outside source”) would result in the invalidation of the attestation clause and ultimately, of the will itself.

Art. 810Roxas v. De Jesus (1985) [103]· Issue: whether “FEB./61” appearing in the holographic will is a valid compliance with Art. 810.

· A complete date is required to provide against such contingencies as that of two competing wills executed on the same day, or of a testator becoming insane on the day on which a will was executed. There is no contingency in this case.· As a general rule, the “date” in a holographic will should include the day, month, and year of its execution. However, when, as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date “FEB./91” is a valid compliance with Art. 810, probate of the holographic will should be allowed under the principle of substantial compliance.

Labrador v. CA (1990) [105]· Fact: date appears in the body of the holographic will.· The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. Both requirements are present in the subject will.

Art. 811Azaola v. Singson (1960) [110]The three-witness provision in case of contested holographic wills is directory, not mandatory.· Since the authenticity of the will was not contested, proponent was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Art. 811 cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under the penalty of having the probate denied.· Since no witness may have been present at the execution of a holographic will, none being required by law, it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent.· Art. 811 foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will, and provides for resort to expert evidence to supply the deficiency. Such resort to expert evidence is conditioned by “if the Court deem it necessary,” which reveal that what the law deems essential is that the Court should be convinced of the will’s authenticity. Since the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party’s failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.· SC’s conclusion: the rule of Art. 811, par. 1, is merely directory and is not mandatory.

Codoy v.Calugay (1999)· Fact: holographic will challenged for forgery. 6 witnesses of proponent did not categorically state that they know the handwriting and signature of the testatrix; whereas, 2 did so.· Issue: whether the provisions of Art. 811 is mandatory, i.e., for probate of contested holographic will at least three witnesses explicitly declare the signature in the will is the genuine signature of the testator.· SC (Pardo): “We are convinced, based on the language used, that Article 811…is mandatory. We have ruled that ‘shall’ in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word ‘shall’ when used in a statute is

mandatory.” Case remanded because the Court found that the testimony of the aforesaid 2 witnesses was not convincing.Query: has this ruling reversed Azaola, supra.?1) Azaola is not on all fours with this case. Here, the will was contested (ground: forgery), in Azaola the will was not contested.2) RFB’s personal view: No, because the basis of the remand—that the Court did not find the testimony of the 2 witnesses satisfactory—is perfectly consistent with Azaola that quality of the testimony, not the quantity of the witnesses, is the criterion. Thus, SC’s statement that three-witness rule is mandatory is an obiter. We can read Azaola and Godoy together.

Gan v. Yap (1958) [114]In the probate of a holographic will, the document itself must be produced. Therefore, a lost holographic will cannot be probated.· When the will itself is not submitted, the means of opposition and of assessing the evidence, are not available. And then, the only guaranty of authenticity—the testator’s handwriting—has disappeared.· The execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.· Ordinary vs. holographic wills. The difference lies in the nature of wills. In holographic wills, the only guarantee of authenticity is the handwriting itself; in ordinary wills, the testimony of the subscribing or instrumental witnesses and of the notary. The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.

Rodelas v. Aranza (1982) [122]Exception to the Gan ruling.· Issue: whether a lost holographic will can be proved by means of a photostatic copy.· Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can be determined by the probate court (i.e., comparison can be made with the standard writings of the testator.

Art. 814Kalaw v. Relova (1984) [125]Effect of non-compliance.· Issue: whether the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by full signature of the testatrix, should be probated or not.· Velasco v. Lopez: when a number of erasures, corrections, and interlineations made by the testator in a holographic will have not been noted under his signature, the will is not thereby invalidated as a whole, but at most only as respects the particular words, erased, or interlined.· However, when as in this case, the holographic will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. To state that the will as first written should be given efficacy is to disregard the seeming change of

mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by lay by affixing her full signature.· Velasco ruling must be held confined to such insertions, cancellations, erasures or alterations in a holographic will, which affect only the efficacy of the altered words themselves but not the essence and validity of the will itself.

Subsection 4-Witnesses to WillsArticle 821

Gonzales vs. CA

Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. The attributes of the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness are presumed of the witness unless the contrary is proved otherwise by the opposing party.In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution.‘Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.

Subsection 6Article 830

Maloto vs. CA

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself."Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction.

Gago vs. Mamuyac

The law does not require any evidence of the revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to prove the cancellation or revocation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator.

Subsection 8- Allowance and Disallowance of WillsArticle 838

Guevara vs. Guevara

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees, and devisees of the testator. Although not contested, the due execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy.The heirs may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory,

De la Cerna vs. Potot

In a case where a joint will between husband and wife was executed and the will was probated when the husband died before the effectivity of the Civil Code, the final decree of probate has conclusive effect as to the last will and testament, despite the fact that even then the Civil Code already decreed the invalidity of joint wills. A final judgment rendered on a petition for the probate of a will is binding upon the whole world and public policy and sound practice demand that at the risk of occasional errors, judgment of courts should become final at some definite date fixed by law. The probate decree of the

will of the husband could only affect the share of the deceased husband. It could not include the disposition of the share of the wife who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus, probate of the wife’s will is denied as joint wills are now prohibited by the Civil Code.

Gallanosa vs. Arcangel

A decree of probate is conclusive as to the due execution or formal validity of a will. That means that the testator was of sound and disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine and is not a forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore.The following are included in the term formal validity and therefore are conclusively settled by a final decree of probate:i. that the testator was of sound and disposing mindii. that his consent was not vitiatediii. that the will was signed by the requisite number of witnessesiv. that the will is genuine

Nepomuceno vs. CA

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule, however, is not inflexible and absolute. Given 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. The probate of a will might become an idle ceremony if on its face it appears intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.

SECTION 2- Institution of HeirArticle 850

Austria vs. Reyes

Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause.

Article 854

Reyes vs. Barretto-Datu

If there is a compulsory heir in the direct line, such heir is instituted in the will, and the testamentary disposition given to such heir is less than her legitime, there is no preterition. There is no total omission, inasmuch as the heir received something from the inheritance. The remedy is for completion of legitime under Articles 906 and 907.

Aznar vs. Duncan

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him

expressly, nor assigning to him some part of the properties. In a case where the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons, it was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitimate be completed.

Acain vs. IAC

An adopted child, if totally omitted in the inheritance, is preterited and can invoke its protection and consequences. Since an adopted child is given by law the same rights as a legitimate child, the adopted child can, in proper cases, invoke Article 854 in the same manner a legitimate child can.

Nuguid vs. Nuguid

To 'annul' means to abrogate, to make void. The word annul employed in the statute (Article 854) means that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir — without any other testamentary disposition in the will — amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. (Note that what was involved here was a universal institution of a sole heir, nothing more. Article 854 annuls his institution, thus no more heirs are left. Hence, the entire will is void.)

SECTION 3-Substitution of HeirsArticle 863

Palacios vs. Ramirez

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 transmission 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."

PCI Bank vs. Escolin

If there is no absolute obligation imposed upon the first heir to preserve the property and transmit it to a second heir, there is no fideicomisaria. The institution is not necessarily void; it may be valid as some other disposition, but it is not a fideicomisaria.

SECTION 5- LegitimeArticle 887

Rosales vs. Rosales

The surviving spouse referred to in Article 887 who is entitled to the legitime, is the spouse of the decedent and not the spouse of a child who has predeceased the decedent.

Lapuz vs. Eufemio

An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. Being personal in character, it follows that the death of one party to the action causes the death of the action itself — actio personalis moritur cum persona. Thus, death of either party during the pendency of a petition for legal separation results in the dismissal of the case.

Niñal vs. Badayog

May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? Petitions for the declaration of the voidability of a marriage can only be brought during the lifetime of the parties and not after the death of either. A void marriage, on the other hand, can be brought even after the death of either party. The Code is silent as to who can file a petition for declaration of nullity of marriage. Any proper interested party (heirs of the deceased husband) may attack a void marriage.

Baritua vs. CA

Legitimate ascendants (parents of the deceased) succeed only when the descendant dies without a legitimate ascendant. The surviving spouse concurs with all classes of heirs. Thus, where an obligation has been paid to the spouse and descendants, the obligation is extinguished and the legitimate ascendants have no right to claim upon the obligation.

Article 891

Solivio vs. CA

The reserva troncal only applies to properties inherited by an ascendant or a brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.

Padura vs. Baldovino

The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant.The reserva merely determines the group of relatives to whom the property should be returned; but within that group the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Article 891 does not specify otherwise. (RFB: Those reservatarios nearer in degree to the prepositus will exclude the more remotely related.)

Florentino vs. Florentino

I Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came.The right of representation cannot be alleged when the one claming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such.(RFB: Actually there will be only one instance of representation among the reservatarios, i.e., a case of the Prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother or sister.)

Edroso vs. Sablan

1. The reservista’s right over the reserved property is one of ownership.2. The ownership is subject to a resolutory condition, i.e. the existence of reservatarios at the time of the reservista’s death.3. The right of ownership is alienable, but subject to the same resolutory condition.4. The reservista’s right of ownership is registrable.

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do.On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy.

Sienes vs. Esparcia

1. The reservatarios have a right of expectancy over the property.2. The right is subject to a suspensive condition, i.e. the expectancy ripens into ownership if the reservatarios survive the reservista.3. The right is alienable, but subject to the same suspensive condition.4. The right is registrable.

(Query: Edroso case says reservatarios right is not alienable, Sienes says it is. Resolve. Personally, I think Sienes is right.)

Gonzales vs. CFI

Can a reservista convey by will, reservable property to relervatarios in the third degree and by-pass those in the second? NO. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.The reservable property does not form part of the reservista’s estate and should be given to all the

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

Cano vs. Director

Upon the death of the reservista, the reservatario nearest to the prepositus becomes, automatically and by operation of law, the owner of the reservable property. That property is no part of the estate of the reservista, and does not even answer for the debts of the latter. Hence, its acquisition by the reservatario may be entered in the property records without necessity of estate proceedings, since the basic requisites therefor appear of record. It is equally well settled that the reservable property cannot be transmitted by a reservista to her or his own successors mortis causa, so long as a reservatario within the third degree from the prepositus and belonging to the line whence the property came, is in existence when the reservista dies.

Chapter 3 Legal or Intestate SuccessionArticle 977Section 1 General ProvisionsSubsection 2 Right of Representation

Teotico vs. Del Val

The relationship established by adoption is limited solely to the adopter and the adopted does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter. Thus, an adopted can neither represent nor be represented.

Section 2 Order of Intestate SucessionSubsection 1 Descending Direct LineArticle 979

Sayson vs. CA

The philosophy underlying this article is that a person's love descends first to his children and grandchildren before it ascends to his parents and thereafter spreads among his collateral relatives. It is also supposed that one of his purposes in acquiring properties is to leave them eventually to his children as a token of his love for them and as a provision for their continued care even after he is gone from this earth.

There is no question that a legitimate daughter of a person who predeceased his parents, and thus their granddaughter, has a right to represent her deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, she is entitled to the share her father would have directly inherited had he survived, which shall be equal to the shares of her grandparents' other children.But a different conclusion must be reached for persons to whom the grandparents were total strangers. While it is true that the adopted child shall be deemed to be a legitimate child and have the same right as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party.

Subsection 3 Illegitimate ChildrenArticle 992

Corpus vs. Administrator

There is a successional barrier between the legitimate and illegitimate relatives of the deceased. The rule in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child".That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment

Leonardo vs. CA

An illegitimate cannot, by right of representation, claim a share of the estate left by the legitimate relatives left by his father considering that, as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father.

Diaz vs. CA

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Art. 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a

blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment. So that while Art, 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so.

Diaz vs. CA

The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception.The word "relative" as used in Article 992 is broad enough to comprehend all the kindred of the person spoken of. The word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say:According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and intended is not warranted by any rule of interpretation. Besides, he further states that when the law intends to use the term in a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New Civil Code.

Subsection 4 Surviving SpouseArticle 996

Santillon vs. Miranda

There is a conflict with what the Civil Code provides as legitime of a spouse and what he or she may receive by way of intestacy. Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Art. 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs. Thus, upon intestacy, the provisions of Art. 996 applies.

Chapter 4 Provisions Common to Testate and Intestate SuccessionSection 2 Capacity to Succeed by Will or by IntestacyArticle 1025

Parish Priest of Roman Catholic Church vs. Rigor

Where a priest makes a provision in his will that certain legacies shall pass to his nearest male relative who pursues priesthood, it is said to be limited to those living at the time of the execution of the will. We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" (Art. 1025, Civil Code).

Section 5 CollationArticle 1061

Vizconde vs. CA

Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessors will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee.Thus, it is an error to require a son-in-law of the decedent to be included in the collation as he is not a compulsory heir.

Section 6 Partition and Distribution of the EstateSubsection 1 Partition

Fajardo vs. Fajardo

There are only two ways in which said partition could have been made: By an act inter vivos, or by will. In either case there were formalities which must be followed. If the partition was made by an act inter vivos, it should have been reduced in writing in a public instrument, because it was a conveyance of real estate. If by last will and testament, the legal requisites should have been observed.

Chavez vs. IAC

Art. 1080 of the Civil Code clearly gives a person two options in making a partition of his estate; either by an act inter vivos or by will. When a person makes a partition by will, it is imperative that such partition must be executed in accordance with the provisions of the law on wills; however, when a person makes the partition of his estate by an act inter vivos, such partition may even be oral or written, and need not be in the form of a will, provided that the partition does not prejudice the legitime of compulsory heirs. (RFB: This ruling should not be used as it raises eyebrows very high. It gives a partition an irrevocable character and allows a conveyance of the compulsory heirs of their legitimes even during their lifetimes.)

Legasto vs. Verzosa

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.

Article 1082

Tuason vs. Tuason Jr.

Where heirs contracted with a third person to develop their co-owned lot, with the stipulation that the co-ownership shall subsist until all the lots have been sold, is not a violation of Art. 400, and is only a mere incident to the main object of the partnership, which is to dissolve the co-ownership.

Article 1088

Garcia vs. Calaliman

Written notice is required for the period of onemonth for the other co-heirs to redeem begins to run. Both the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the notice specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. Written notice is indispensable, actual knowledge of the sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the Code, to remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for any alternative, the method of notifications remains exclusive, though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption