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DIGEST/SUPPLEMENTAL NOTES AND COMMENTARIES ON SUCCESSION

TITLE IV

Succession

CHAPTER 1

General Provisions

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

ARTICLE 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n)

DIGEST:

Uson v. Del Rosario

92:530| Andres

FACTS:

This is an action for recovery of the ownership and possession of five (5) parcels of land in Pangasinan, filed by Maria Uson against Maria del Rosario and her four illegit children. Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment. Defendants in their answer set up as special defense that Uson and her husband, executed a public document whereby they agreed to separate as husband and wife and, in consideration of which Uson was given a parcel of land and in return she renounced her right to inherit any other property that may be left by her husband upon his death. CFI found for Uson. Defendants appealed.

ISSUE:

W/N Uson has a right over the lands from the moment of death of her husband.

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W/N the illegit children of deceased and his common-law wife have successional rights.

HELD:

Yes. There is no dispute that Maria Uson, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, was merely a common-law wife with whom she had four illegitimate children with the deceased. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Art 777 NCC).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death". From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced.

No. The provisions of the NCC shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation only if no vested rights are impaired. Hence, since the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband, the new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

Almeida vs. Carnllo, 67 Phil 92 NO CASE

NO DIGEST FOR CORONEL VS CA, 1996Art. 776 – Inheritance

ARTICLE 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659)

DIGESTED CASE:

CONDE vs. ABAYA

13 PHIL 240

FACTS: Casiano Abaya, unmarried, died intestate. Paula Conde alleged that she is the mother of Jose and Teopista, who are natural children of Casiano and she moved for the settlement of Casiano’s estate.

Roman Abaya on the other hand moved that he be declared as the sole heir of Casiano.

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Trial court ruled that Roman should recognized Jose and Teopista as being natural children of Casiano, and Paula should succeed as the mother of the deceased natural children.

ISSUE: WON Paula may bring an action for acknowledgment of the natural filiation of the children.

HELD: No, she cannot.

Article 776 of the Civil Code applies. The right of action that devolves upon the child to claim his legitimacy lasts during his whole life, while the right to claim acknowledgment of a natural child lasts only during the life of his presumed parents. The right of action which the law concedes to this natural child is not transmitted to his descendants or ascendants.

Since the presumed parents as well as the natural children are already dead, the mother of that natural children can no longer bring an action for acknowledgment.

Digested Case: LEDESMA vs. MCLACHLIN66 PHIL 547

FACTS: Lorenzo Mclachlin is indebted to 3rd person. But Lorenzo before he was able to pay the debt, he died. But when he died, he had no property. Theoretically, there should have been succession between Lorenzo and Anna. So Anna should have inherited from Lorenzo. But because Lorenzo had no properties, Anna did not inherit anything from Lorenzo.

ISSUE: Can the 3rd person claim from Anna?

RULING: No. He cannot because Lorenzo did not transmit anything to Anna and the inheritance is only to the extent of the value. So, for example, Lorenzo had debts. The value of the inheritance should only be to the value of the debts. But there was no property left. So the value of the inheritance is zero. The debts cannot be enforced against Anna because Anna inherited nothing.

DIGESTED CASE:

Limjoco vs. Estate of Fragrante

G.R. No. L-770April 27, 1948

FACTS:

On May 21, 1946, the Public Service Commission issued a certificate of public convenience to the Intestate Estate of the deceased Pedro Fragante, authorizing the said intestate estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from the said plant in the Municipalities of San Juan, Mandaluyong, Rizal, and Quezon City; that Fragante’s intestate estate is financially capable of maintaining the proposed service.

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Petioner argues that allowing the substitution of the legal representative of the estate of Fragante for the latter as party applicant and afterwards granting the certificate applied for is a contravention of the law.

ISSUE:

Whether the estate of Fragante be extended an artificial judicial personality.

HELD:

The estate of Fragrante must be extended an artificial judicial personality. If Fragrante had lived, in view of the evidence of record, would have obtained from the commission the certificate for which he was applying. The situation has not changed except for his death, and the economic ability of his estate to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself.

It has been the constant doctrine that the estate or the mass of property, rights and assets left by the decedent, directly becomes vested and charged with his rights and obligations which survive after his demise. The reason for this legal fiction, that the estate of the deceased person is considered a "person", as deemed to include artificial or juridical persons, is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged.

The estate of Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, include the exercise during the judicial administration of those rights and the fulfillment of those obligations of his estate which survived after his death.

The decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. It includes those rights and fulfillment of obligation of Fragante which survived after his death like his pending application at the commission.

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DIGEST 2: ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.

FACTS:

Pedro Fragante applied for a certificate of public convenience with the Public Service Commission to install, maintain and operate an ice plant. But he died pending the application. Hence, he was substituted by his legal representative.

Petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law.

ISSUE: W/N Fragante’s legal representative may continue the application.

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HELD/RATIO: YES. Unless otherwise expressly provided by law, any action affecting the property or rights of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right.

It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, ca not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding.

DIGEST 2: Limjoco v. Intestate of Fragante

In this case, Fragante applied for a certificate of public convenience. After his death, the certificate was issued to his intestate estate, to which petitioner opposed contending that substitution of the legal representative of the estate should not have been allowed. The SC held that such certificate would be certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death.

DIGESTED CASE:

JOHNNY S. RABADILLA vs. COURT OF APPEALS, et.al.

[G.R. No. 113725. June 29, 2000.]

PURISIMA, J.:

FACTS:

Dr. Jorge Rabadilla, in a codicil (a supplement to a will; an appendix) of Aleja Belleza, was instituted devisee of Lot No. 1392 with an area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein private respondent every year during the latter's lifetime.

The codicil provides that the obligation is imposed not only on the instituted heir but also to his successors-in-interest and that in case of failure to deliver, private respondent shall seize the property and turn it over to the testatrix's "near descendants."

Dr. Rabadilla died and was survived by his wife and children, one of whom is herein petitioner.

Private respondent, alleging failure of the heirs to comply with their obligation, filed a complaint with the RTC praying for the reconveyance of the subject property to the surviving heirs of the testatrix.

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During the pre-trial, a compromise agreement was concluded between the parties wherein the lessee of the property assumed the delivery of 100 piculs of sugar to private respondent; however, only partial delivery was made.

The trial court dismissed the complaint for lack of cause of action stating that, “While there may be the non-performance of the command as mandated, exaction from them (the petitioners), simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint.”

The CA, reversed the decision and held that the institution of Dr. Rabadilla is in the nature of a modal institution and a cause of action in favor of private respondent arose when petitioner failed to comply with their obligation under the codicil, and in ordering the reversion of Lot 1392 to the estate of testatrix. Thus, the present petition.

ISSUE:

Whether or not private respondent has a legally demandable right against the petitioner, as one of the compulsory heirs of Dr. Rabadilla.

HELD:

YES.It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

DIGEST 2: RABADILLA vs. CA June 29, 2000

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FACTS: In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of parcel of land. The Codicil provides that Jorge Rabadilla shall have the obligation until he dies, every year to give Maria Marlina Coscolluela y Belleza, (75) (sic) piculs of Export sugar and (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

Dr. Jorge Rabadilla died. Private respondent brought a complaint, to enforce the provisions of subject Codicil.

ISSUE: WON the obligations of Jorge Rabadilla under the Codicil are inherited by his heirs.

HELD: Under Article 776 of the NCC, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

DIGESTED CASE: Speed Distributing Corp vs. CA G.R. No. 149351. March 17, 2004

To determine whether a case involves an intra-corporate controversy, and is to be heard and decided by the Branches of the RTC specifically designated by the Court to try and decide such cases, two elements must concur: (a) the status or relationship of the parties; and (2) the nature of the question that is the subject of their controversy.

The first element requires that the controversy must arise out of intra-corporate or partnership relations between any or all of the parties and the corporation, partnership or association of which they are stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the State insofar as it concerns their individual franchises. The second element requires that the dispute among the parties be intrinsically connected with the regulation of the corporation. If the nature of the controversy involves matters that are purely civil in character, necessarily, the case does not involve an intra-corporate controversy. The determination of whether a contract is simulated or not is an issue that could be resolved by applying pertinent provisions of the Civil Code.

In the present recourse, it is clear that the private respondent’s complaint in the RTC is not an intra-corporate case. For one thing, the private respondent has never been a stockholder of Leslim, or of Speed for that matter. The complaint is one for the nullification of the deed of absolute sale executed by Leslim in favor of Speed over the property covered by TCT No. T-36617 in the name of Leslim, the cancellation of TCT No. T-116716 in the name of Speed, as well as the Secretary’s Certificate dated August 22, 1994. The private respondent alleged that since her deceased husband, Pastor Lim, acquired the property during their marriage, the said property is conjugal in nature, although registered under the name of Leslim under TCT No. T-36617. She asserted that the petitioners connived to deprive the estate of Pastor Lim and his heirs of their possession and ownership over the said property using a falsified Secretary’s Certificate stating that the Board of Directors of Leslim had a meeting on August 19, 1995, when, in fact, no such meeting was held. Petitioner Lita Lim was never a stockholder of Leslim or a member of its Board of Directors; her husband, petitioner Ireneo Marcelo was the Vice-President of Speed; and, petitioner Pedro Aquino was Leslim’s corporate secretary. The private respondent further averred that the amount of P3,900,000.00, the purchase price of the property under the deed of absolute sale, was not paid to Leslim, and that petitioners Spouses Marcelo and petitioner Pedro Aquino contrived the said deed to consummate their devious

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scheme and chicanery. The private respondent concluded that the Deed of Absolute Sale was simulated; hence, null and void.

We are convinced that on the basis of the material allegations of the complaint, the court a quo had jurisdiction over the case.

Rule 3, Section 2 of the Rules of Court, as amended, provides as follows:

SEC. 2. Parties in interest.— A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

The private respondent filed the complaint as one of the heirs of Pastor Lim, who died intestate on June 11, 1994. She was, in fact, the surviving spouse of the deceased, a compulsory heir by operation of law. The general rule under the law on succession is that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called upon to succeed by operation of law to the inheritance without the need of further proceedings. Under Article 776 of the New Civil Code, inheritance includes all the properties, rights and obligations of a party, not extinguished by his death. Although the private respondent was appointed by the probate court as a special administratrix of the estate of Pastor Lim, she had the right, apart from her being a special administratrix, to file the complaint against the petitioners for the nullification of the deed of absolute sale, and TCT Nos. T-36617 and T-116716. Indeed, iEmnace vs. Court of Appeals, we held that:

On the third issue, petitioner asserts that the surviving spouse of Vicente Tabanao has no legal capacity to sue since she was never appointed as administratrix or executrix of his estate. Petitioner’s objection in this regard is misplaced. The surviving spouse does not need to be appointed as executrix or administratrix of the estate before she can file the action. She and her children are complainants in their own right as successors of Vicente Tabanao. From the very moment of Vicente Tabanao’s death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are transmitted from the moment of death of the decedent.

Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to respondents by operation of law, more particularly by succession, which is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted. Moreover, respondents became owners of their respective hereditary shares from the moment Vicente Tabanao died.

A prior settlement of the estate, or even the appointment of Salvacion Tabanao as executrix or administratrix, is not necessary for any of the heirs to acquire legal capacity to sue. As successors who stepped into the shoes of their decedent upon his death, they can commence any action originally pertaining to the decedent. From the moment of his death, his rights as a partner and to demand fulfillment of petitioner’s obligations as outlined in their dissolution agreement were transmitted to respondents. They, therefore, had the capacity to sue and seek the court’s intervention to compel petitioner to fulfill his obligations.

In her complaint, the private respondent sought the nullification of the Deed of Absolute Sale executed by Leslim Corporation in favor of Speed, as well as TCT No. T-36617 under its name. Thus, Leslim Corporation is an indispensable party, and should be impleaded as a party-defendant conformably to Section 7, Rule 3 of the Rules of Court, as amended.

SEC. 7. Compulsory joinder of indispensable parties.— Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

As Leslim Corporation was a party to the deed, its interests in the subject of the action and the outcome thereof is such that the trial court could not proceed without its presence. All actuations of the trial court subsequent to the filing of the

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complaint are null and void, not only as to Leslim Corporation, but also as to the present parties. All the compulsory heirs of the deceased must also be impleaded as plaintiffs, being indispensable parties. Thus, the private respondent needs to amend her complaint in the court a quo to include all indispensable parties; otherwise, her claim would be dismissed.

Art. 777 - Rights to the succession are transmitted from the moment of death of decedent

NO DIGEST for BARRETO vs TUASON

DIGEST: Ibarle v. Po (L-5046, Feb. 27, 1953)

Similarly, a widow’s sale of conjugal property (owned

after the husband’s death by herself and by the children), is

not valid insofar as the children’s share is concerned. This is

so even without a formal judicial declaration of ownership of

the children, for their rights accrued from the moment of the

father’s death.

DIGEST 2: IBARLE vs. PO

February 27, 1953

FACTS: Leonard died in June 1946 leaving his surviving spouse, Catalina, and some minor children as his heirs. Catalina sold an entire parcel of land, which is a conjugal property, to spouses Canoy. It was then sold to Ibarle. The Deeds of Sale were not registered.

In 1948, Catalina sold ½ of the said land to Po, which portion belongs to the children.

HELD: 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. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death.

When Catalina sold the entire parcel of land to the Canoy spouses, ½ of it already belongs to the children. Thus, the first sale was null and void in so far as it included the children’s share.

On the other hand, the sale to the Po having been made by authority of the competent court was undeniably legal and effective.

Art. 777

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DIGESTED CASE: Lorenzo v. Posadas

Facts:

Thomas Hanley died, leaving a will and considerable amount of real and personal properties. His will provided that 10 years after his death, his nephew Matthew Hanley would become owner of his properties. Plaintiff Lorenzo was appointed as trustee. During plaintiff’s incumbency as trustee, the defendant Collector of Internal Revenue, alleging that the estate left by the deceased at the time of his death consisted of realty and personalty, assessed against the estate an inheritance tax. The defendant prayed that the trustee be ordered to pay the Government the inheritance tax together with the penalties for delinquency in paying such tax. The trustee, plaintiff Loada, paid under protest and however, he demanded that he be refunded for the amount paid. The defendant overruled plaintiff’s protest and refused to refund the amount.

Issues:

1. When does the inheritance accrue?

2. Should the inheritance be computed on the basis of the value of the estate at the time of the testator’s death or on its value 10 years later?

Held:

1. The tax is upon transmission or the transfer or devolution of property of a decedent, made effective by his death. It is in reality an excise or privilege tax imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law, or deed, grant, or gift to become operative at or after death. Thomas Hanley having died on May 27, 1922, the inheritance tax accrued as of the date.

2. Based of the value of the estate at the time of the testator’s death - If death is the generating source from which the power of the estate to impose inheritance taxes takes its being and if, upon the death of the decedent, succession takes place and the right of the estate to tax vests instantly, the tax should be measured by the value of the estate as it stood at the time of the decedent's death, regardless of any subsequent contingency value of any subsequent increase or decrease in value.

A transmission by inheritance is taxable at the time of the predecessor's death, notwithstanding the postponement of the actual possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the property transmitted at that time regardless of its appreciation or depreciation.

NO DIGEST for MACASAET VS MACASAET

NO DIGEST for FLORA VS PRADO

DIGESTED CASE: Danilo I. Suarez, et al. v. CA, et al.

GR 94918, Sep. 2, 1992

FACTS:

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Petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has not been

liquidated or partitioned. In 1977, petitioners’ widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered

by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages. The judgment against petitioner’s mother and Rizal Realty Corporation having become fi nal and executory, fi ve (5) valuable parcels of land in Pasig, Metro Manila (worth to be millions then) were levied and sold on execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.00. Private respondents were then issued a certifi cate of sale which was subsequently registered

on Aug. 1, 1983. On June 21, 1984, before the expiration of the redemption period, petitioners fi led a reivindicatory action against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case 51203, for the annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held liable therefor and that the fi ve (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution. On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a fi nal deed of sale over the properties. On Oct. 22, 1984, Teofi sta Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration

of the Order dated Oct. 10, 1984, claiming that the parcels of land are co-owned by them and further informing the Court the filing and pendency of an action to annul the auction sale

(Civil Case 51203), which motion however, was denied. On Feb. 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the fi nding that the auctioned lands are co-owned by petitioners. On Mar. 1, 1985, private respondent Valente Raymundo fi led in Civil Case 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute; however, such motion was later denied by Branch 155, Regional Trial Court, Pasig. On Dec. 1985, Raymundo fi led in Civil Case 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding petitioner’s pending motion for the issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration

was fi led but was later denied. On Oct. 10, 1984, RTC Branch 151 issued in Civil Cases 21736-21739 an Order directing Teofi sta Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from removing or alienating improvements thereon; and to surrender to private respondents the owner’s duplicate copy of the Torrens Title and other pertinent documents. Teofi sta Suarez then fi led with

the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated Oct. 10, 1984 and Oct. 14, 1986 issued in Civil Cases 21736-21739. On Dec. 4, 1986, petitioners fi led with Branch 155 a Motion for reconsideration of the Order dated September 24, 1986. In an Order June 10, 1987, Branch 155 lifted its previous order of dismissal and directed the issuance of alias summons. Respondents then appealed to the Court of Appeals seeking to annul the orders dated Feb. 25, 1985. May 19, 1989 and Feb. 26, 1990 issued in Civil Case 51203 and further ordering respondent judge to dismiss Civil Case 51203. The appellate court rendered its decision on July 27, 1990, the dispositive portion of which reads: “WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated Feb. 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case 51203.’’ Hence, this appeal.

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HELD:

It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution

of the case: “The rights to the succession are transmitted from the moment of the death of the decedent.’’ Article 888 further provides: “The legitime of the legitimate children and

descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.’’ Article 892,

par. 2 likewise provides: “If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate chil dren or descendants.’’ Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any

way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of Aug. 28, 1990 are hereby REVERSED and set aside; and Civil Case 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.

DIGESTED CASE:RIOFERIO vs. CA

January 13, 2004

FACTS: Alfonso P. Orfinada, Jr. died without a will leaving several personal and real properties.

He also left a widow, respondent Esperanza P. Orfinada, whom he had seven children who are the herein respondents.

Also, the decedent also left his paramour and their children. They are petitioner Teodora Riofero and co-petitioners Veronica, Alberto and Rowena.

Respondents Alfonso James and Lourdes (legitimate children of the deceased) discovered that petitioner Teodora and her children executed an Extrajudicial Settlement of Estate of a Deceased Person with Quitclaim involving the properties of the estate of the decedent located in Dagupan City.

Respondent Alfonso filed a Petition for Letters of Administration. Respondents filed a Complaint for the Annulment/Rescission of Extra Judicial Settlement of Estate.

Petitioners raised the affirmative defense that respondents are not the real parties-in-interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the administration proceedings.

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ISSUE: Whether or not the heirs may bring suit to recover property of the estate pending the appointment of an administrator.

HELD: Pending the filing of administration proceedings, the heirs without doubt have legal personality to bring suit in behalf of the estate of the decedent in accordance with the provision of Article 777 of the New Civil Code "that (t)he rights to succession are transmitted from the moment of the death of the decedent." The provision in turn is the foundation of the principle that the property, rights and obligations to the extent and value of the inheritance of a person are transmitted through his death to another or others by his will or by operation of law.

Even if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet been appointed. This is the proper modality despite the total lack of advertence to the heirs in the rules on party representation.

DIGESTED CASE: PALICTE vs. RAMOLETE

September 21, 1987

FACTS: Palicte is among the declared heirs on Spl. Proc. No. 2706-R. However, the lower court ruled that she does not qualify as a successor-in-interest who may redeem the real properties sold at public auction on July 5, 1979 for the satisfaction of the judgment in the amount of P725, 279.00.

ISSUE: Whether or not Palicte is a successor-in-interest who may be able to redeem the said properties sold at pubic auction?

RULING: YES. The term successor-in-interest includes one who succeeds to the interest of the debtor by operation of law.

In this case, Palicte is the daughter of the late Don Filemon Sotto whose estate was levied upon on execution to satisfy the money judgment. As a legitimate heir, she qualifies as a successor-in-interest. Thus the law provides, Art. 777 of the New Civil Code, “The rights to the succession are transmitted from the moment of the death of the decedent.”

In the case of Director of Lands vs. Lagniton, the Court has ruled that: “the right of a son, with respect to the property of a father or mother, is also an inchoate or contingent interest, because, upon the death of the father or the mother or both, he will have a right to inherit said conjugal property. If any holder of an inchoate interest is a successor-in-interest with right to redeem a property sold on execution, then such son is such a successor-in-interest, as he has an inchoate right to the property of his father.”

Palicte v. Hon. Ramolete, et al.

L-55076, Sep. 21, 1987

Art. 777 of the Civil Code provides that “the rights to the succession are transmitted from the moment of the death of the decedent.’’ At the moment of the decedent’s death, the

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heirs start to own the property, subject to the decedent’s liabilities. In fact, they may dispose of the same even while the property is under administration. If the heirs may dispose of

their shares in the decedent’s property even while it is under administration, with more reason should the heirs be allowed to redeem redeemable properties despite the presence of an administrator.

Art. 795

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. (n)

Particular Use of Art. 795

As has been seen, Art. 795 refers to extrinsic validity from the viewpoint of time. Said provision “is the same prin ciple enunciated by our Supreme Court in the cases of Bona

v. Briones, 38 Phil. 76, and In Re Will of Riosa, 39 Phil. 23.’’ (Comment of the Code Commission).

The Legislature cannot validate a will void at the time it was made by changing the formalities required. (See Enriquez, et al. v. Abadia, et al., 50 O.G. 4185). This is because if it were otherwise, the testator would be deprived of property without due process of law. (See Thompson, pp. 53-64). However, said rule applies only to formal or extrinsic validity. Change in successional rights or intrinsic validity may be done even after the will is made, as long as the testator is still alive. This is because until death comes, no right has become vested as yet, the right to the property accruing only at the moment of death. (Art. 777).

(4) Reason for Art. 795

A testator cannot be expected to know the future, hence, it is enough that he follows the law in force at the time he makes the will.

Idem; Effect of changes after testator’s death. —

Upon the death of the testator, successional rights arising from the will are vested in the persons called to the inheritance either as heirs or as devisees or legatees. In other words, the title of such heirs, devisees or legatees becomes a vested right, protected under the due process clause of the Constitution against any subsequent change in the law which would have the effect of invalidating the will. Consequently, to allow retroactivity of effect to any statutory change enacted after the death of the testator so as to invalidate a will which was perfectly valid at the time of its execution since it has complied with all of the formalities prescribed by the law then in force would certainly be equivalent to a deprivation of property rights without due process of law.24 Thus, in Bona vs. Briones,25 a case decided long before the enactment of the New Civil Code, it was held that although his will did not comply with the additional formalities prescribed by a law enacted after the death of the testator, yet it can still be admitted to probate since it had complied with all of the formalities prescribed by the law in force at the time of its execution.

In re will of Riosa

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The will was executed prior to the enactment of an act which required additional formalities. The question is which law will govern? SC ruled that the law at the time the will was executed will govern. Hence the additional formalities need not be complied with.

795 – validity of a will as to its form depends on the law in force at the time of execution

DIGESTED CASE: IN RE: WILL OF RIOSA 39 PHIL 23

FACTS:

The testator executed a will in 1908 in accordance with the laws enforced at that time wherein there was no requirement of signing and attestation of the will. In 1917 the testator died wherein the laws enforced at that time already required that the will must be signed by the testator and attested.

HELD:

It does not matter that when he died, the laws required signing and attestation because the extrinsic validity of his will should be measured by the laws enforced at the time of the execution of the will not at the time of the death of the testator. So the legislature by providing certain formalities CANNOT INVALIDATE A WILL VALIDLY MADE at the time when the testator executed his will.

_____________________________

Art. 799

ARTICLE 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. (n)

Digested case: BUGNAO vs. UBAG

September 18, 1909

HELD: The following requisite must be present for one to be able to be considered as having soundness of mind or having testamentary capacity:

1. Know the nature of the estate to be disposed of

2. The proper objects of his bounty

3. He must know the character of the testamentary act.

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It is true that the testimony discloses the fact that the testator at that time of execution of the will was extremely ill, in an advanced stage of tuberculosis complicated with severe attacks of asthma. But all the evidence of physical weakness in no wise establishes his mental incapacity or a lack of testamentary capacity. 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 feeble minded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what it is about and how or to whom he is disposing of his property.

SUPPLEMENTAL NOTES:

The second paragraph gives the affi rmative defi nition as made in the case of Bugnao v. Ibag, 14 Phil. 163.

Soundness of mind requires:

(a) that testator knows the nature of the estate to be disposed of (character, ownership of what he is giving)

(b) that testator knows the proper objects of his bounty (by persons who for some reason expect to inherit something from him — like his children)

(c) that testator knows the character of the testamentary act (that it is really a will, that it is a disposition mortis causa, that it is essentially revocable)

CASE DIGEST: BAGTAS vs. PAGUIO

March 14, 1912

FACTS: Paguio suffered from paralysis of the left side of his body until his death. In the probation of his will, it was contended that he was not in full enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a will

HELD: In this jurisdiction, there is a presumption in favor of mental capacity of the testator and the burden is upon the contestants of the will to prove the lack of the testamentary capacity at the time of the execution of the will. In this case, the testator has never been adjudged insane. Paralysis is not equivalent to mental incapacity. It is not necessary that a person must be in full possession of his mental and reasoning faculties to be able to be considered of sound mind. It is not necessary that his mind be unbroken, unshattered by disease, injury or other cause.

CASE DIGEST: BAGTAS VS. PAGUIO22 Phil 227

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FACTS:1. Pioquinto Paguio died on September 28, 1909.2. For some 14 or 15 years prior to the time of his death, he suffered from a paralysis of the left side of his body; that a few years prior to his death his hearing became impaired and that he lost the power of speech.3. He retained the use of his right hand and was able to write fairly well.4. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family.5. The testator wrote out on several pieces of paper the disposition of his property.6. The same was in turn delivered to one Señor Marco who transcribed and put them in form.7. The pieces of paper were then delivered to a lawyer who read them to the testator asking if they were his dispositions.8. The testator assented each time with an affirmative movement of his head.9. The widow of the decedent Juliana Bagtas then sought the probate of the purported last will and testament of Pioquinto.10. The CFI of Bataan admitted the same for probate.11. Isidoro Paguio, a son of the decedent by a former marriage, opposed the probation on the ground that the testator was not n full enjoyment and use of his mental faculties and was without mental capacity necessary to execute a valid will.

ISSUE:Was the will was validly executed?

HELD:The rule of law relating to the presumption of mental soundness is well-established, and the testator in the case at bar never having been adjudged insane by the court of competent jurisdiction , this presumption continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by proper evidence. The opponents failed to do this.

The courts have repeatedly held that mere weakness of mind and body , induced by age and disease does not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard , few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal, are universal in the statement that the question of mental capacity is one of degree, and that there are many gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated insanity or idiocy.

Bagtas vs. Paguio

Testator’s body was paralyzed on the left side, his hearing was impaired, he had lost his power of speech, his head fell to one side, and saliva ran from his mouth. However, he retained the use of his right hand and was able to write fairly well. The question is whether or not the testator was of sound mind. SC ruled that the presumption of a sound mind was not rebutted. Witnesses testified that the testator wrote the disposition in pieces of paper; he was asked whether they were indeed dispositions to which he nodded his head in affirmation; and the will was read to him out loud

SUPPLEMENTAL NOTES:

(1) Will-Making Is a Strictly Personal Act

The mechanical act of drafting may be entrusted to another, as long as the disposition itself expresses the testator’s desires, and all the formalities of the law are complied with, such as

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the signing by the testator and the witnesses (in the case of a notarial will), or the copying by the testator in his own handwriting (in the case of the holographic will). (See Castañeda v.Alemany, 3 Phil. 426; Bagtas v. Paguio, 22 Phil. 227).

DIGESTED CASE: GALVEZ vs. GALVEZ 26 PHIL 243

HELD: Although the testator was ill with CHOLERA, since he demonstrated that he had sufficient energy and clear intelligence to execute his last will in accordance with the requirements of the law, his case must be an exception to the general rule that cholera patients in majority of cases become incapacitated.

SUPPLEMENTAL NOTES:

(1) Requisites for Soundness of Mind

(a) The fi rst paragraph gives the negative defi nition of soundness

of mind, enunciated in the case of Bagtas v. Paguio, 22 Phil. 277.

Therefore, just because a person has paralysis and loss of speech (Bagtas v. Paguio, supra), or cholera (Galvez v. Galvez, 6 Phil. 243), insomnia (Caguioa v. Calderon, 20 Phil. 400), diabetes (Samson v. Corrales Tan Quintin, 44 Phil. 573), sleeping sickness or Addison’s disease (Neyra v. Neyra, 76 Phil. 296), cerebral hemorrhage affecting half

of the body (Magsuci v. Gayona, [C.A.] 45 O.G. [5th S] p. 157), deafness, blindness, poor memory (Garcia v. Garcia, 35 O.G. 956; Neyra v. Neyra, 76 Phil. 296), it does not follow that he was of an unsound mind at the time he executed the will.

______________________________

SUPPLEMENTAL NOTES:

NOTE: The law presumes that the testator is of sound mind, UNLESS: a. he, one month or less, before making his will, was publicly known to be insane; or b. was under guardianship at the time of making his will. (Torres and Lopez de Bueno vs. Lopez 48 Phil 772) In both cases, the burden of proving sanity is cast upon proponents of the will.

There is another case or instance when the presumption of mental capacity is inverted which we might as well consider as the second exception to the rule that every person is presumed to possess mental capacity. This occurs when the testator makes a will at a time when he is still under guardianship. Thus, in Torres and Lopez de Bueno vs. Lopez,23 the Supreme Court held that where the testator was under guardianship at the time of the making of hiswill, there arises a prima facie presumption of mental incapacity; consequently, the burden of proving soundness of mind in such case is cast upon the proponents of the will.

General rule:

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Presumption is for soundness of mind. -- Proponent of will does not have to prove

the soundness of mind of the testator. Why? The law on evidence says that you don't have to

prove:

(1) that w/c is admitted;

(2) that w/c is presumed; and

(3) that w/c is taken judicial notice of. Disputable presumptions may be overcome by proof to the contrary.

There are 3 presumptions of law:

(1) conclusive;

(2) quasi-conclusive w/c can be overcome only by specific proof;

(3) disputable

Exception: Insanity is rebuttable presumed when:

1. Art. 800 par. 2.-- One month or less before the making of the will, the testator was

publicly known to be insane. E.g., A, one month before making of the will was running in the

Plaza Miranda naked and shouting "Ibagsak!" This is what you mean by publicly known.

2. If there had been a judicial declaration of insanity and before such order has been

revoked. (Torres v. Lopez, 48 P 772.)

In these 2 cases, it is the proponent's duty to offer evidence to the contrary, i.e., prove that

the making of the said will was made by the testator during a lucid interval

DIGESTED CASE: TORRES, LOPEZ DE BUENO vs. LOPEZ February 26, 1926

FACTS: It was contended that the testator lacked mental capacity because at the time of the execution of the will, he had senile dementia and was under guardianship.

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HELD: The testator may have been of advanced years, may have been physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian, and may have been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms ―testamentary capacity.‖ Only compete senile dementia will result to testamentary incapacity.

SUPPLEMENTAL NOTES:

Idem; Effect of infirmity or disease. —

Neither is physical infi rmity or disease inconsistent with testamentary capacity, although there is no question that evidence of such fact is admissible on the issue of testamentary capacity. Just as in the case of old age, the usual tests of testamentary capacity must still have to be applied.31 Thus, it has been held that the fact that the testator, at the time of the execution of the will, was suffering from the last stages of tuberculosis and asthma,32 or from paralysis and loss of speech,33 or from cholera,34 or from a combination of sleeping

sickness, insomnia, tuberculosis, and diabetes,35 will not affect his testamentary capacity, so long as it cannot be proved by competent evidence that, at the time when the will was executed, he was no longer in a position 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 same rule can be applied even if, at the time

when the will was being executed, the testator was so sick that it was necessary for somebody else to guide his hand in order that he could sign it,36 or even if a few months before the execution of the will, the testator, who was 85 years old, had a stroke of cerebral

hemorrhage, with hemiplegia, caused by high blood pressure.37 On the other hand, it has also been held that the fact that the testator, at the time of the execution of the will, was already in a comatose or semi-comatose condition, caused by cerebral hemorrhage,38 or by

apoplexy,39 or by diarrhea and gastro-enteritis with complications of miocarditis,40 or by cerebral thrombosis,41 so that nothing around him could cause any impression or reaction, would certainly destroy his testamentary capacity.

HERNAEZ vs. HERNAEZ 1 PHIL 718

HELD: OLD AGE is not sufficient to establish lack of testamentary capacity.

SUPPLEMENTAL NOTES:

Idem; Id. – Inversion of presumption. —

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If the testator, one month or less, before making his will, was publicly known to be insane, the presumption of soundness of mind is inverted.20 In other words, instead of a presumption of mental capacity, there is a presumption of mental incapacity. Consequently, the burden of proof is shifted to the proponents of the will. They must prove by proper

evidence that the testator made the will during a lucid interval.

What is meant by a lucid interval? According to Thompson, it may be described as that period in which an insane person is so far free from his disease, that the ordinary legal consequences of insanity do not apply to acts done therein. More precisely, it refers

to that period in which an insane person has so far recovered from his insanity so that he is in a position to be able at the time of making his will to know the nature of the state to be disposed of, the proper objects of his bounty, and the character of the testamentary act. In

American law, the rule is that, as distinguished from temporary mental weakness, insanity of a confi rmed or permanent nature, shown to have affl icted the testator at one time, is presumed to have continued to the subsequent time of the execution of the will, in the

absence of evidence to the contrary, and that once it is established that the testator had been affl icted with insanity of such type, the burden rests upon the proponent of the will to produce evidence that the incapacity did not exist when the will was executed, or to show

that the will was made during a lucid interval.22 Under our law, the rule is that if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during

a lucid interval. Hence, if it cannot be established that the testator was publicly known to be insane within the required period of one month or less before the making of his will, the presumption of mental capacity stands, and as a consequence, there will be no need

on the part of the proponents of the will to prove that the testator made it during a lucid interval.

Questions on collation do not interrupt distribution — as long as adequate security is given.

Only properties received by gratuitous title may be the subject of collation. (Hernaez v. Hernaez, 1 Phil. 718). Thus, collation may, in proper cases, be done, whateverbe the character or nature of the donation — simple, remunerative or onerous — but in the last (remunerative or onerous), only insofar as they exceed the value of the service or of the charge. (7 Manresa 589; Ignacio v. Ignacio, supra).

ON LEGAL REDEMPTION:

Seventh Requisite — The Redemptioner Must Reimburse the Price of the Sale

A, B, and C are co-heirs. Before partition, A sold his hereditary rights to X for P100,000. X then sold to Y for P200,000. If B wants to redeem, how much must he pay Y?

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ANS.: Only P100,000. This is true even if the rights have been resold. The purpose of the article cannot be evaded by a reconveyance of the interest to a third person at a higher price.

Subsequent buyers get the property burdened with the right of co-heirs to effect a redemption at the price for which the heir who sold it parted with it. (See Hernaez v. Hernaez, 32 Phil.

214).

[NOTE: Art. 1088 speaks of a legal redemption which is distinct from the legal redemption given to a co-owner by Arts. 1620 and 1623. (Wenceslao v. Calimon, 46 Phil. 906).].

DIGESTED CASE: AVELINO vs. DELA CRUZ

February 21, 1912

FACTS: It was contended that the will should not have been validated because at the time of the making of the will, the decedent was blind for a number of years beforehand and thus was incompetent to make the will in question.

HELD: A blind testator may be competent to make a will. Mere fact of blindness does not render him incompetent. No presumption of incapacity can arise from the mere fact that he was blind. The only requirement of the law as to the capacity to make a will is that the person shall be of age and of sound mind and memory. Blind persons are prohibited from acting as witnesses in the execution of wills, but no limitation is placed upon testamentary capacity, except age and soundness of mind.

Art. 804

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

SUPPLEMENTAL NOTES:

Common Formalities. —

Under Art. 804, there are two formalities which must be complied with in the execution of wills, whether ordinary or holographic. They are: (1) the will must be in writing; and (2) it must be written in a language or dialect known to the testator.

Idem; Written form of wills. —

Every will must be in writing. Whether the will is ordinary or holographic, this requirement is

mandatory. It must be noted, however, that if the will is holographic, it is essential that it must be entirely written in the handwriting of the testator himself. If the will is ordinary, so long as it is in writing it does not matter on what material, whether on paper or parchment, it is written. It may be written by hand or typewritten, or printed from plates or type. The validity of an instrument as a will is not affected by the fact that it is written partly in pen and partly in pencil, or that it was written wholly in lead pencil; such a will is as valid as if written in ink.5

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The law does not specify that the testator himself must perform the act of writing. However, Art. 810 provides that in the case of holographic wills, the will must be written entirely in the

handwriting of the testator himself. Consequently, it is only in the case of ordinary wills that whoever performs the mechanical act of writing or drafting the will becomes a matter of indifference.6

Idem; Language of wills. —

Art. 804 also requires that every will must be executed in a language or dialect known to the testator. This requirement is applicable both to ordinary and holographic

wills.

It must be noted that there is no statutory requirement that

the testator’s knowledge or understanding of the language or dialect

in which the will is executed should be expressed either in the body

of the will itself or in the attestation clause. Consequently, it is a

matter that may be established by proof aliunde.7 But where a will

is drawn up in the dialect of a certain locality and it is established

that the testator was living in or was a resident of that locality,

there arises a presumption that the will is drawn up in a language

or dialect known to the testator, in the absence of evidence to the

contrary.

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.

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DIGEST 2: ACOP VS. PIRASO52 Phil 660

FACTS:1. The CFI of Benguet denied the probate of the last will and testament of the deceased Piraso because the will sought to be probated was written in English.2. Evidence showed that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself understood in that dialect.3. Proponent-appellant Sixto Acop alleged that the lower court erred in not holding that the testator did not know the Ilocano dialect well enough to understand a will drawn up in said dialect.

ISSUE:Should the will be probated?

HELD:The testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary.

In the instant case, not only is it not proven the English is the language of the City of Baguio where the deceased Piraso lived and where the will was drawn, but the record contains positive proof that said Piraso knew no other language than the Igorotte dialect, with a smattering of Ilocano; that is, he did not know the English language in which the will is written.

SUPPLEMENTAL NOTES:

The will must be executed in a language or dialect knownto the testator.If the testator resides in a certain locality, it can bepresumed that he knows the language or dialect in said

locality. (Abangan v. Abangan, 42 Phil. 476). Naturally,it is useless to avail of this presumption if the will is notwritten in the dialect of the locality. Moreover, the presumptionis only prima facie, and therefore, the contrary may be proved. Thus, it may be shown, for example, by proof in court that the testator was really ignorant of the language of the community or locality, or of the language in which the will had been written. (Acop v. Piroso, 52 Phil. 660). The fact that the testator knew the will’s language need not appear on the face of the will. Extrinsic evidence is allowed to prove this. (Lopez v. Liboro, 81 Phil. 429). Where the formal requisites for the validity of the will have been satisfactorily established, except the language requirement, the parties should be afforded, in the interest of justice, an opportunity to present evidence, if they so desire, on this controverted issue. (Jimenez Vda.

de Javellana, et al. v. Javellana, et al., L-13781, Jan. 30,1960).

LANGUAGE OR DIALECT KNOWN TO THE TESTATOR

· The fact that the testator knew the language need not be

stated in the will or attestation clause.

· It may be established by proof aliunde at the probate.

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· It may also be inferred from the fact that it was made in the

dialect of the locality where the testator resided.

ACOP V. PIRASO:

Art. 805 –

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also

sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each

page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

" Guison vs. Conception, 5 Phil 551

SUPPLEMENTAL NOTES:

As a matter of fact, the person signing for the testator does not even have to put his own name. (Barut v. Cagacungan, 1 Phil. 461; Bolonan v. Abellana, et al., L-15153, Aug. 31, 1960). All the law requires is that he puts the name of the testator. (Caluya v. Domingo, 27 Phil. 330). Upon the other hand, if he puts down his own name, and omits that of the

testator, this would be a substantial violation of the law and would render the will invalid. (Guison v. Concepcion, 5 Phil. 551; Bolonan v. Abellana, et al.,L-15153, Aug. 31, 1960)

DIGESTED CASE: n Re Will of Siason

10 Phil. 504

FACTS: A will ended in this way: “At the request of Señora Maria Siason.’’

“Catalino Geva” “T. Silver’’ “F. Morin’’ “R. Espinosa” Señora Siason made her own signature, but it was contended that it should not be considered one, since it forms the end of the phrase “at the request of _________________.” Is the will valid?

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HELD: Yes, it can be considered a valid signature, and the will is therefore valid, because after all, in this case, the name immediately follows the statement itself, and precedes names of the witnesses.

(CAN’T FIND THE CASE)

SUPPLEMENTAL NOTES:

It is important that the testator signs in the presence of the witnesses, hence, if he brings to their attention a document purportedly to be a will but already previously signed, the requirements of the law have not been complied with. However, as long as the signing is done within the presence of one another, it really does not matter much whether the

witnesses signed ahead of or after the testator — as testator — as long as the signing is suffi ciently contemporaneous. In either case, the will is valid. (See Gabriel v. Mateo, 51 Phil.216).

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.

Andalis vs. Pulgueras, 59 Phil 643

SUPPLEMENTAL NOTES:

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If the acknowledgment of the will was not signed by the notary public in the presence of the testator and the witnesses, is the will valid?

The notary public need not be present at the time of the execution of the will. In Javellana vs. Ledesma, 97 Phil. 258, it was held that whether or not the notary signed the certification of acknowledgment in the presence of the testator and the witnesses does not affect the validity of the will. A comparison of Articles 805 and 806 of the new Civil Code reveals that while the testator and witnesses must sign in the presence of each other. All that is thereafter required is that “every will must be acknowledged before a notary public by the testator and the witnesses: (Article 806); i.e. that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary dispositions. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence, their separate execution out of the presence of the testator and his witnesses can not be said to violate the rule that testaments should be completed without interruption.

Thus, the certification of acknowledgment need not be signed by the notary in the presence of the testator and the witnesses. Article 806 does not require that the testator and the witnesses must acknowledge on the same day that it was executed. Neither does the article require that the testator and the witnesses must acknowledge in one another’s presence. However, if the acknowledgement is done by the testator and the witnesses separately, all of them must retain their respective capacities until the last one has acknowledged.

However, the execution of the will must be done in one occasion. (Andalis vs. Pulgueras, 59 Phil. 643)

A notarial will although notarized is not considered a public document because the notary is not required to retain a copy thereof or to file a copy with the office of the Clerk of Court where copies of documents notarized by notaries are submitted every month. The rationale

behind is to keep the contents of the will secret so that the testator may not be unduly pressured or influenced to change his will by unscrupulous relatives or interested persons. The notary public is not even allowed to read the will unless permitted by the testator. The only time the notary public is required to read the will is when the will is executed by a blind person.

Idem; Meaning of presence. —

The law also requires that the will must be attested and subscribed by the instrumental witnesses “in the presence of the testator and of one another.’’ The purpose of such a requirement is evidently to prevent the substitution of a surreptitious will.35 Under this rule, it is essential that each one of the three instrumental witnesses must actually sign not only in the presence of the testator, but also in the presence of the other witnesses. In other words, the execution of a will is supposed

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to be a single act or transaction and cannot be legally effective if the various participants signed on various days or occasions and in various combinations of those present.36 Hence, it is not suffi cient if the witnesses merely acknowledged their previously affi xed signatures in the presence of the testator or in the presence of each other.37 It is not, however, essential that the testator must have actually seen the signing of the will by each one of the instrumental witnesses.38 It is, therefore, evident that the phrase “in the presence of the testator and of one another” has a technical meaning. Thus, according to Thompson:

“The words of the statute imply contiguity with an uninterrupted view between the testator and the witnesses, so that, if he so desires, he can see the act of attestation, whether in the

same room or not, and an attestation in the same room with the testator is generally held to be a sufficient subscription in his presence, unless there is some obstruction or physical obstacle which intervenes and prevents him from knowing of his own knowledge or perceiving by his senses the act of attestation. It is often stated that the testator need not actually see the witnesses sign provided he could have seen them sign if he desired to do

so, even though it would have been necessary for him to move slightly in order to do so. There is no signing in his presence where the testator for any reason is not aware of the nature of the act being done, no matter how close to him it may be done.

“The testator’s consciousness of the fact that the attesting signatures are being written is held to be an indispensable requirement under a statute requiring attestation in the presence

of the testator. It has also been said that the testator must have actually seen, or have been in such position that he could have seen, not only the witnesses but the instrument itself, considering both his position and the state of his health at the time, but, according to some authorities, if the testator is unable to move by reason of physical infirmities, this will not prevent the act of attestation being considered as performed in his presence.

“The witnesses must subscribe ‘in his presence,’ but in cases where the testator has lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribe in the same room or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence. In case the testator is blind, the superintending control, which in other cases is exercised by sight, must be transferred to the other senses; and if they are, or may, at his discretion, be made sensible that the witnesses are subscribing

the same will that he signed, it should be deemed a sufficient compliance with the statute.”39

_____________________________

DIGESTED CASE: ANDALIS VS. PULGUERAS59 Phil 643

FACTS:1. The alleged will of Victor Pulgueras was admitted to probate.2. The testimony of only one to the attesting witnesses was taken.3. The testimony was:a) that the 6 pages of the will were signed on the margin by the testator and two of the witnesses on January 4, 1931;

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b) the remaining three pages were signed by the testator and the three attesting witnesses on January 11, 1931, and that the third attesting witness then signed the first six pages.

ISSUE:Was the will executed properly?

HELD:Such an execution of the will was not in conformity with the law. Under our statute, the execution of a will is supposed to be one act and cannot be legally effective if the various participants sign on various days and in various combinations of those present.

NO DIGEST FOR MENESALVA

Yap tua vs. Yap Ka Kuan, 27 Phil 579

SUPPLEMENTAL NOTES:

Idem; Language of attestation. —

Under our Code if the attestation clause is in a language not known to the witnesses, it

shall be interpreted to them. This rule is different from that which is required of the will itself because in the case of the latter the rule is that it must be executed in a language or dialect known to the testator.

(10%)

Clara, thinking of her mortality, drafted a will and asked Roberta, Hannah, Luisa and Benjamin to be witnesses. During the day of the signing of her will, Clara fell down the stairs and broke both her arms. Coming from the hospital, Clara insisted on signing her will by thumb mark and said that she can sign her full name later. While the will was being signed, Roberta experienced a stomach ache and kept going to the restroom for long periods of time. Hannah, while waiting for her turn to sign the will, was reading the 7th Harry Potter book on the couch, beside the table on which everyone was signing. Benjamin, aside from witnessing the will, also offered to notarize it. A week after, Clara was run over by a drunk driver while crossing the street in Greenbelt. May the will of Clara be admitted to probate? Give your reasons briefly.

Yes, the will of Clara may be probated.A thumbmark has been considered by the Supreme Court as a valid signature if intended by the testator to be his signature. (Garcia v. La Cuesta, G.R. No. L-4067, November 29, 1951; De Gala v. Gonzales, G.R. No. L-37756, November 28, 1933).

The three witness rule required for the validity of an ordinary will is satisfied provided either of the two conditions exists:

1. Roberta could see Clara and the other witnesses sign the will at any time while she was in the toilet, had she wanted to.

2. If Roberta could not have seen Clara and the other witnesses sign the will, the same is valid if the will was acknowledged

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before a Notary Public other than Benjamin.

It is not necessary that the testator or the witnesses should actually see the others subscribe their names to the instrument, provided that he is position to see them sign if he chooses (Nera v. Rimando, G.R. NO. 5971, February 27, 1911; Yap Tua v. Yap Ka Kuan, G.R. No. L-6845, September 1, 1914). Thus, the signing must be considered to be in the presence of Hannah, who was reading a book on the couch beside the table. (Suggested Answers to the 2007 Bar Examination Questions, PALS).

If the testator’s fi rst name appears, without the surname, the will is valid. (Yap Tua v. Yap Ka Kuan, 27 Phil. 579).

DIGESTED CASE: YAP TUA vs. YAP CA KUAN September 1, 1914

FACTS:

A witness testified that that the testator was sick with tuberculosis and was lying in her bed but sat up to sign the will. It was also mentioned that the testator signed the will with great difficulty.

HELD:

Tuberculosis by itself if not indicative that the testator was of unsound mind at the time of the execution of the will. The testimony of the doctor as to the mental condition of the deceased was 24 hours before the execution of the will. Several witnesses testified that at the time the will was presented to her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed it. The testator was of sound mind and memory and in the possession of her faculties at the time she signed this will.

_______________________

SUPPLEMENTAL NOTES:

Is it required that the witnesses actually saw the testator affixed his signature in the will?

No, because the phrase “in the presence” does not necessarily require actual seeing, but only the possibility of seeing without physical obstruction. In Jaboneta vs. Gustilo, 5 Phil. 541, it was said that if a witness merely turned his back, the signing is still considered in his presence. (Could have seen it had he chosen to)

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Idem; Test of presence. —

What test, therefore, shall we apply in order to be able to determine whether or not the witnesses signed the will “in the presence of the testator and of one another?”

This question has been answered several times by our highest court — notably in the cases of Jaboneta vs. Gustilo, 5 Phil. 541; Nera vs. Rimando, 18 Phil. 450; Neyra vs. Neyra, 76 Phil. 296; and Dominador vs. Benedicto, 48 Off. Gaz. 213.

Jaboneta vs. Gustilo

5 Phil. 541

In these proceedings, the will of Mario Jaboneta was denied probate by the lower court on the ground that Javellana, one of the witnesses, did not attach his signature thereto in the

presence of Jena, another of the witnesses. It is admitted that after the testator and the witnesses Jalbuena and Jena had signed the will and all of the pages thereof, the latter stood up and left the room just as the third witness Javellana was signing the will and all of the pages thereof.

The question now is — ISSUE:did Javellana sign his name in the presence of Jena as required by law?

HELD: According to the Supreme Court, speaking through Justice Carson: “We cannot agree with so much of the above fi nding of the facts as holds that the signature of Javellana was not signed in the presence of Jena. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affi xing his signature to the will, taken together with the testimony of the remaining witnesses, which shows that Javellana

did in fact there and then sign his name to the will, convinces us that the signature was affi xed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned, while a portion of the name of the witness was being written is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose and at the moment

when the witness, Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place

DIGESTED CASE: JABONETA vs. GUSTILO January 19, 1906

FACTS: There were 3 witnesses as to the execution of the will of Jaboneta. Jena signed first, followed by Jalbuena. At that moment, Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the room, Jena saw Javellana, the 3rd witness, took the pen in his hand and put himself in position to sign the will as a witness, but did not sign in the

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presence of Jena. Nevertheless, after Jena had left the room, Javellana signed as a witness in the presence of the testator and of the witness Jalbuena. (pansin ko lang puro ―J‖ ang surname sa testator ug witnesses .. hehe )

HELD: The will should be admitted to probate. It is not required that the witness must see the actual signing of the other witnesses. The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and mental apprehension. The true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription.

The fact that he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance. At the moment when the witness Javellana signed the document, he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so.

_________________________

Digested case: NERA VS RIMANDO

G.R. L – 5971 February 7, 1911

Carson, J.:

FACTS:

The trial judge have not considered the question of fact which is of vital

importance to the case. The members of the Court opined that the subscribing

witness was in the small room with the testator and the other subscribing witnesses

at the time when they attached their signatures to the instrument.

ISSUE:

Whether or not a subscribing witness at the time the instrument was signed

was outside the rooms, the testament be accepted.

HELD:

At the time when the testator was signing the will, the witness was outside,

the will shall be invalid. This is because, the line of vision from this witness to the

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testator and the other subscribing witness would necessarily have been impeded by

the curtain separating the inner from the outer one at the moment of inscription ofeach signature.

__________________________________________

Digest 2: Nera v. Rimando 18:450 | Cukingnan

FACTS:

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

HELD:

Citing Jaboneta v. Gustilo, the court held that “The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.” But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so.

The question is whether the testator and the subscribing witnesses to an alleged will signed the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

______________________________

DIGEST 3: NERA vs. RIMANDO February 27, 1911

FACTS:

There was a dispute as to the circumstances attending the signing of the will on the day of its execution:

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1. whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures

2. whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument

HELD:

The SC admitted the first one and the will was admitted for probate. If the 2nd circumstance had happened, had the subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature." The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign.

SUPPLEMENTAL NOTES:

Nera v. Rimando.—

Actual seeing is not required. What is required is thatthe person required to be present must have been able to see the signing, if he wanted to do so, bycasting his eyes in the proper direction. His line of vision must not be impeded by a wall orcurtain. This is a question of fact for the lower court to determine. Blind witnesses are therefore disqualified.

Idem; Test of presence. —

What test, therefore, shall we applyin order to be able to determine whether or not the witnesses signed the will “in the presence of the testator and of one another?”

This question has been answered several times by our highest court— notably in the cases of Jaboneta vs. Gustilo, 5 Phil. 541; Nera vs.Rimando, 18 Phil. 450; Neyra vs. Neyra, 76 Phil. 296; and Dominador vs. Benedicto, 48 Off. Gaz. 213.

COMMENTARIES:

Nera vs. Rimando

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18 Phil. 450

This case concerns the probate of the last will and testament

of Pedro Rimando. The pertinent facts are embodied inthe following opinion of the Supreme Court which was pennedby Justice Carson:

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

their signatures to the instrument. “A majority of the members of the court is of the opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this fi nding, of course, disposes of the appeal and necesitates the affi rmance

of the decree admitting the document to probate as the last will and testament of the deceased.

“The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of the opinion that under

the doctrine laid down in the case of Jaboneta vs. Gustilo, 5 Phil. 541, the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other subscribing witnesses signed the instrument in the inner room, had it been proven, would not be suffi cient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room

at the same time when the testator and the other subscribing witness attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under such circumstances not being done in the presence of the witness in the outer room. This is because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by

the curtain separating the inner room from the outer one ‘at the moment of inscription of each signature.’ “In the case just cited, on which the trial court relied, we

held that: ‘The true test of presence of the testator and the witnesses in the execution of wills 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 condition and position with relation to each other at the moment of inscription of each signature.’ ’’

________________________________________________________

DIGEST: NEYRA vs. NEYRA 76 PHIL 333

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HELD: The mental faculties of persons suffering from ADDISON’S DISEASE remain unimpaired, partly due to the fact that on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. Like patients suffering from TUBERCULOSIS, INSOMNIA or DIABETES, they preserve their mental faculties until the moment of their death. Even if the testator is ill and his hand is guided in signing will, lying down and unable to move or stand up unassisted, the testator is not considered to of unsound mind. Delirium when it beclouds the mind so as not to understand the nature of act, extent of property, and objects of bounty is an indication of an unsound mind.

__________________________________________

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.

__________________

DIGEST 2:

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IN RE: ESTATE OF SAGUINSIN March 15, 1920

FACTS: The will constituted of 3 pages on 2 sheets. The signatures of the 3 attesting witnesses together with that of the alleged testatrix were written on the left margin of the 1st page (front of 1st sheet), and the 3rd page (front of 2nd sheet). However, said signatures are absent on the 2nd page (back of the 1st sheet), which was on the reverse side of the 1st page where, as is seen, the manuscript is continued.

HELD:

The will is invalid. The attestation did not state the number of sheet or pages used upon which the will is written. The 2nd page, which was written on the reverse side of the first, engenders the doubt whether what is written thereon was ordered written by the alleged testatrix or was subsequently added by the same hand that drew the first page and the date that appears on the third. The English text of the law which require the signing of pages (―paginas‖), and not merely leaves or sheets (―hojas‖) under the Spanish text should prevail. The law requires that both pages of a sheet must be signed. This failure to comply with the law vitiates the will and invalidates it, as the second page is lacking in authenticity.

________________________

SUPPLEMENTAL NOTES:

The law says “page” not sheet. (A sheet has two pages, the front and reverse sides; if both are used, both must be paged). (See In Re Estate of Saguinsin, 41 Phil. 875).

Marginal Signatures. —

According to the fi rst part of the second paragraph of Art. 805, “the testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin.” Again, it must be observed that this requirement is mandatory in character. As a matter of fact, as an additional safeguard, the law also provides that the attestation clause shall state the fact.Under this requirement, it is essential that all of the pages of the will, except the last, should be signed not only by the testator but also by all of the instrumental witnesses. Consequently. if even one of the pages of the will does not contain the required marginal

signature or the pages are not signed by the witnesses although they are signed by the testator or such pages are not signed by the testator although they are signed by the witnesses, the will which is offered for probate shall be disallowed.

_____________________________________

DIGESTED CASE: AVERA vs. GARCIA September 14, 1921

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FACTS: The admission for probate of the will of Esteban is being appealed on the grounds that only one of the attesting witnesses was presented and by reason of the fact that the signature of the testator and of the 3 attesting witnesses are written on the right margin of each page of the will instead of the left.

HELD: All attesting witnesses must be examined, if alive and within reach of the process of the court. However, this point was not raised by appellant in the lower court, hence deemed waived. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or no the right margin, provided they are on one or the other. By the mode of signing here adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same degree that it would have been protected by being signed in the left margin

_____________________________________

SUPPLEMENTAL NOTES:

Idem; Location of signatures. —

The law requires that the signatures of the testator and the instrumental witnesses should be

on the left margin of every page of the will except the last. According to the weight of authority, this requirement regarding the location of the marginal signatures is not mandatory in character, provided, of course, that such signatures are present in every page of the will, except the last.44 Thus, in Avera vs. Garcia and Rodriguez,45 the Supreme Court, through Justice Street, declared: “It is true that the statute says that the testator and the

instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that all the statutory requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court. Still some details at times creep into legislative enactments which are so trivial that it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signature of the testator and witnesses shall be written on the left margin of each page rather than on the right margin — seems to be of this character. So far as concerns the authentication of the will and of every part thereof it can make no possible difference whether the names appear on the left or on the right margin provided they are on one or the other.

________________________

DIGESTED CASE: NAYVE vs. MOJAL

December 29, 1924

FACTS: The defects attributed to the will are:

(a) not having been signed by the testator and the witnesses on each and every sheet on the left margin;

(b) the sheets of the document not being paged with letters;

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(c) the attestation clause does not state the number of sheets or pages actually used of the will; and

(d) the testator does not appear to have signed all the sheets in the presence of the 3 witnesses, and the latter to have attested and signed all the sheets in the presence of the testator and of each other.

HELD:

(a) As each and every page used of the will bears the signatures of the testator and the witnesses, the fact that said signatures do not all appear on the left margin of each page does not detract from the validity of the will.

(b) Paging with Arabic numerals and not with letters is within the spirit of the law, and is just as valid as paging with letters.

(c) The last paragraph of the will in question and the attestation clause, coming next to it, are of the following tenor:

"In witness whereof, I set my hand unto this will here in the town of Camalig, Albay, Philippine Islands, this 26th day of November, nineteen hundred and eighteen, composed of four sheets, including the next X X X" The number of sheets is stated in said last paragraph of the will. The attestation clause must state the number of sheets or pages composing the will; but when, as in the case before us, such fact, while it is not stated in the attestation clause, appears at the end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the will, then there can be no doubt that it complies with the intention of the law that the number of sheets of which the will is composed be shown by the document itself, to prevent the number of the sheets of the will from being unduly increased or decreased.

(d) The attestation clause above set out it is said that the testator signed the will "in the presence of each of the witnesses" and the latter signed "in the presence of each other and of the testator." So that, as to whether the testator and the attesting witnesses saw each other sign the will, such a requirement was clearly and sufficiently complied with. What is not stated in this clause is whether the testator and the witnesses signed all the sheets of the will.

The fact of the testator and the witnesses having signed all the sheets of the will may be proven by the mere examination of the document, although it does not say anything about this, and if that is the fact, as it is in the instant case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist.

-------------------------------------

SUPPLEMENTAL NOTES:

Whenever the marginal signatures are required, although the law says “left margin,” the purpose is served if they are on the “right, top, or bottom margin,” for the only purpose is to identify the pages used, and thus prevent fraud. (Avena v. Garcia, 42 Phil. 145; Nayue v. Mojal, 47 Phil. 152).

(f) All the pages shall be numbered correlatively in lettersplaced on the upper part of each page.

[NOTE:

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1) Purpose: to guard against fraud, and to afford means of preventing substitution or of detecting the loss of any of its pages. (Lopez v. Liboro, 81 Phil. 429).

2) Correlative numbering in letter — means “One,” “Two,” “Three,” etc. (Aldaba v. Roque, 43 Phil. 378), BUT “A,” “B,” “C,” would be suffi cient (Ibid.), or “Page 1,” “Page 2,” “Page 3,” (Nayue v. Mojal and Aguilar, 47 Phil. 152), or even plain “1,” “2,” or “3,” since this would amount to substantial compliance with the law. As a matter of fact, it has been held

that “the omission to put a page number on a sheet if that be necessary, may be supplied by other forms of identifi cation more trustworthy than the conventional numeral words or characters.” (Lopez v. Liboro, supra).

Numbering of Pages. —

According to the last part of the second paragraph of Art. 805, it is also essential that “all of the pages of the will shall be numbered correlatively in letters placed on the upper part of each page.” The principal object of this requirement is to forestall any attempt to suppress or substitute any of the pages of the will.46 Again, it must be observed that this requirement is

mandatory in character. However, it is not necessary when all of the dispositive parts of a will are written on one sheet only.47 Neither is it necessary that the pages of the will shall be numbered correlatively in letters such as “one,” “two” or “three.” According to the weight of authority, substantial compliance with the statutory requirement is suffi cient. Consequently, if the page of a will are numbered bymere alphabetical letters,48 or by Arabic numerals,49 or by any form of identifi cation,50 there is suffi cient compliance with the statutory

requirement.

________________________________________

SUPPLEMENTAL NOTES:

Doctrine of Liberal Interpretation. —

The rule stated in the above article is sometimes known as the doctrine of liberal

interpretation. As a consequence of the adoption of this doctrine, the rule of strict interpretation, which used to be upheld by the Supreme Court during that period immediately following the enactment of Act No. 2645 which amended the provisions of Sec. 618 of the Code of Civil Procedure, is abro gated. Thus, according to the Code Commission: “The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and

had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended, regarding the contents of the attestation clause were mandatory, and noncompliance, therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). The decisions necessarily restrained the freedom of the testator in

disposing of his property.

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“However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,

May 18, 1939; Leynez us. Leynez, G.R. No. 46097, October 18,

1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940 and Alcala

vs. Villa, G.R. No. 47351, April 18, 1941.

“In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed

Code in the liberalization of the manner of executing wills, Article

809 of the Project is recommended.’’Before the promulgation of the New Civil Code, there used to be two confl icting views with regard to the possible effect of the failure of the attestation clause to state one or some of the essential facts or matters which must appear in it as required by law. The question around which the confl ict revolved was whether or not the failure of the instrumental witnesses to state one or some of the essential facts which, according to law, must be stated in the attestation clause, would be fatal to the validity of the will in spite of the

fact that it can be established by either intrinsic or extrinsic evidence that all of the statutory requirements for the execution of a will have been complied with. One view (the rule of strict interpretation) held that the omission would be fatal to the validity of the will,while the other view (the rule of liberal interpretation) held that it would not be fatal provided that it can be established or deduced from an examination of the will itself that all of the statutory requirements have been complied with.

___________________________________________________

Testate Estate of Pilapil, 72 Phil 546

The fulltext is written in Spanish Language. There is no point of reading it, we can’t still understand.

_______________________________________

DIGESTED CASE: IN RE: PILAPIL June 27, 1941

FACTS: The probate of the will was opposed on the ground that the will was not properly paged as it was numbered with letters. At the foot of the 1st page appears ―pase ala 2‖ (pass on to the 2nd page). The bottom of the 2nd page also has the phrase ―pase ala 3‖ (pass on the 3rd page). The third page contains the will ―is comprised of 2 articles, containing 16 dispositions and written in 3 pages.

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HELD: The will must be admitted for probate. The paging in this case was a sufficient compliance with the law. It is sufficient that the number of pages can be identified. Indeed, the will in this case, as stated in the 3rd page, contains no more, no less than 2 articles, containing 16 dispositions and written in 3 pages.

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SUPPLEMENTAL NOTES:

So essential is probate that a provision in a will stating that “the will shall not be presented before the courts” is a void provision, for a person cannot by his actuations deprive a competent court of its jurisdiction. (Mendoza v. Pilapil, 72 Phil. 546).

___________________________________________________________

DIGESTED CASE: VILLAFLOR vs. TOBIAS 53 PHIL 714

FACTS: The Will was questioned because the attestation clause was written on a separate page even if there was still a very big space at the bottom of the last page of the will. At the end of the disposition, there was still a large space. However, the attestation clause was written on a separate sheet.

HELD: Liberal interpretation is applied since these are only defects in form. The will is considered valid.

_____________________________________________

SUPPLEMENTAL NOTES:

The attestation is, properly speaking, not part of the will itself, but same may of course be incorporated into the will itself. (Aldaba v. Roque, 43 Phil. 478). Or it may, of course, be written on a separate page. (Villafl or v. Tobias, 53 Phil. 714).

Idem; Contents. —

According to the third paragraph of Art. 805 of the Civil Code, “the attestation shall state the number of pages used upon which the will is written, and the fact that the testator

signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and

of one another.” It is, therefore, clear that there are three essential facts which must necessarily appear in the attestation clause in order that it will properly constitute a real certifi cation by the instrumental witnesses that the formalities which are required by

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law in the execution of an ordinary will have been complied with.

These essential facts are:

(1) The number of pages used upon which the will is written;

(2) The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses; and

(3) The fact that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

_____________________________________________

Icasiano vs. Icasiano, 11 SCRA 422

DIGESTED CASE: ICASIANO vs. ICASIANO June 30, 1964

FACTS: Oppositors introduced expert testimony to the effect that the signatures of the testatrix in the duplicate are not genuine, nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure. It was contended that the Court is bound by the expert testimony as to the authenticity of the signature of the testatrix.

HELD: NO, the Court is not bound by such expert testimony. The opinion of expert for oppositors that the signatures of the testatrix appealing in the duplicate original were not written by the same hand, leaves the Court unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him. There was failure to show convincingly that there are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right after the original. These factors were not discussed by the expert.

_____________________________________________________________

SUPPLEMENTAL NOTES:

Witnesses must sign each and every page, except the last, on the left margin.

This is the same as number 3.

Witnesses may sign anywhere as long as they sign

Icasiano v. Icasiano.-- In the will submitted for probate, one page was not signed by one

of the witnesses. Such failure to sign was due to inadvertence since in the copy, all pages were signed. The SC held that this was not a fatal defect. Considering the circumstances, the fact that the other requirement was complied with, and the

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notarial seal coincided w/ the third page during the sealing, then the will could be probated. Unusual circumstances w/c existed in the case:

(1) there was another copy

(2) inadvertence/ oversight

(3) because of the notarial seal.

The presence of these facts led the SC to allow the will. The general rule, however, is that, the failure to sign any page is a fatal defect.

A executed a will consisting of ten pages. At the probate, B, one of his children interposed an opposition on the ground that A and one of the witnesses has not signed one of the pages of the same. Rule on the opposition and cite your reasons for your ruling.

As a rule, the testator and the instrumental witnesses must sign the will on each and every page thereof. The defect is fatal if there is failure to have the original signatures. (Estate of Tampoy vs. Alberastine, L-14322, Feb. 25, 1960). However, if there was a mere inadvertence of one of the three witnesses or even the testator, where he forgot

to sign on one of the pages, the will must be admitted to probate because of the application of the liberality rule. The will must be respected, rather than having the testator die

intestate. (Icasiano vs. Icasiano, L-18979, June 30, 1964)

3) Purpose of the Article

Art. 809 has been designed to attain the main objective of the new Civil Code in the liberalization of the manner of executing wills. (Comment of the Code Commission). The Court’s policy is to require satisfaction of the legal requirements in

order to guard against fraud and bad faith, but without undue or unnecessary curtailment of the testamentary privilege. (Icasiano v. Icasiano, L-18979, June 30, 1964).

__________________________________________________________

DIGESTED CASE: LEYNEZ vs. LEYNEZ

October 18, 1939

FACTS: The probate of the will was opposed on the ground that the attestation clause of the controverted will fails to state that the testator and the 3 witnesses signed each and every page of the will in the manner prescribed by law because it merely states that it was signed in the presence of one and all and the testator himself.

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HELD: Probate of the will must be allowed. The requirement is sufficiently complied with, it appearing that the testator and the witnesses signed each and every page of the will according to the stipulation of the parties.

An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. A will, therefore, should not be rejected where its attestation clause serves the purpose of the law. The law-making body, in recognition of the dangers to which testamentary dispositions are apt to be subject in the hands of unscrupulous individuals, has surrounded the execution of the wills with every solemnity deemed necessary to safeguard it. This purpose was indicated when our legislature provided for the exclusion of evidence aliunde to prove the execution of the will. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with requirements of the law, the inclination should, in the absence of bad faith, forger or fraud, lean towards the admission of the probate, although the documents may suffer from some imperfection of language, or other non-essential defect.

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SUMMARY: CUEVAS VS ACHACOSO 88 PHIL 730

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the deceased instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He named therein his widow as executrix of the will. On February 1, 1946, Valentina Cuevas filed a petition for the probate of said will.

On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous will executed by the deceased praying therein that, if the will submitted by the widow be rejected, the other will be admitted to probate in lieu thereof. In the previous will there are other heirs instituted, among them petitioner Pilar Achacoso. Pilar Achacoso objected to the probate of the second will executed by the deceased on October 10, 1945.

After due hearing, the court found that the latter will was executed in accordance with law and ordered that it be admitted to probate. Pilar Achacoso took the case to the Court of Appeals, but the latter certified it to this Court on the ground that it involves purely questions of law.

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

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

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

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aforesaid instrumental witnesses, they also signed this testament already reffered to. I hereby manifest that every sheet of the aforesaid testament, on the lefthand margin as well as the testament itself have been signed by me as

also each of the witnesses has also signed in my presence and in the presence of each other.

(Sgd.) JOSE VENZON Witnesses:

(Sgd.) NESTORIO TRINIDAD

(Sgd.) BALDOMERO L. ACHACOSO

(Sgd.) PROCESO CABAL.

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

appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses. "Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause. As was said in one case, "the object of the solemnities surrounding the execution of the wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this

subject should be intrepreted in such a way as to attain this premordialends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded."

e. Witnesses to wills

1. Who are competent

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of

a will mentioned in Article 805 of this Code. (n)

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

Any person not domiciled in the Philippines;

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2. Those who have been convicted of falsification of

a document, perjury or false testimony. (n)

_______________________________

SUMMARY 2: Cuevas vs. Achacoso

88 Phil. 730

The attestation clause of the will which is offered for probate is as follows:

“In witness whereof, I sign this testament or last will in the municipality of Iba, Zambales, Philippines, this 10th day of October, 1945, in the presence of the three witnesses, namely

Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses to my signing; this instrument is written in three (3) sheets marked by letters ‘A,’ ‘B,’ and ‘C’ consecutively on top of each sheet and upon my request and in my presence and also in the presence of each of the aforesaid instrumental witnesses, they also sign this instrument already referred to.

(Sgd.) “Jose Venzon Witnesses:

(Sgd.) “Nestorio Trinidad

(Sgd.) “Baldomero Achacoso

(Sgd.) “Proceso Cabal”

According to the contestant, the above clause is not an attestation clause, or if it is, the same is an attestation of the testator and not of the witnesses. The Supreme Court, however, speaking through Justice Bautista, held:

“The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantially complies with its requirements. The only apparent anomaly we fi nd is that it appears to be an attestation made by the testator himself more than by the instrumental witness. This apparent anomaly, however, is not in our opinion, serious nor substantial, as to affect the validity of the will, it appearing that right under the signature

of the testator, there appear the signatures of the three instrumental witnesses.

“Instrumental witnesses,’’ as defi ned by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, ‘are those who take part in the execution of an instrument

or writing.’ An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.”

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DIGESTED CASE: Cagro v. Cagro 92:1032 | Dina

FACTS:

Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly made a will prior to his death, the will was probated before the CFI of Samar. However, the oppositors-appellant objected the probate proceeding alleging that the will is fatally defective because its attestation clause is not signed by the attesting witnesses. It is undisputed that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.

ISSUE:

W/N the will may be probated even if the signatures of the witnesses do not appear at the bottom of the attestation clause, and instead, they were placed on the left-hand margin of the page containing the same.

HELD:

No. The position taken by the oppositor-appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.

The petitioner-appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, 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 three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. Bautista Angelo, J. dissenting: I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be admitted to probate. It appears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of each other but also that when they did so, the

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attestation clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear immediately after the attestation clause. This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil. 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law — which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions — has already been accomplished. We may say the same thing in connection with the will under consideration because while the three instrumental witnesses did not sign immediately by the majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed. TUASON, J., dissenting: I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as a fact that the attestation clause was not signed when the witnesses’ signatures appear on the left margin and the real and only question is whether such signatures are legally sufficient. The law on wills does not provide that the attesting witness should sign the clause at the bottom. In the absence of such provision, there is no reason why the signatures on the margin are not acceptable.

____________________________________________

DIGESTED CASE 2: CAGRO V. CAGRO:

Facts:

In this case the three witnesses did not sign under the attestation clause.

Issue:

WON the will is correct in form

Held:

No. An unsigned attestation clause cannot be considered an act f the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.

Dissent:

The law on wills does not provide that the attesting witnesses should sign the clause at the bottom.

· Defects or Imperfections of Attestation Clause

o Strict Interpretation: invalidated wills that did not contain attestation clauses strictly in conformity with the law

o Liberal Interpretation: validated wills even thought not in strict conformity with the provision

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o Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and

attested in substantial compliance with all the requirements of Article 805.

o Hence, the liberal interpretation controls. However, evidence aliunde which is admissible under this article refers only to defects in the attestation clause and not to defects in the body of the will its which can never be cured by evidence aliunde.

________________________________________

SUMMARY: CAGRO VS CAGRO

92 PHIL 1032

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

margin. We are of the opinion that the position taken by the appellant is correct.

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

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

Bautista, Angelo, dissenting:

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be

completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law — which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions — has already been accomplished. We may say the same thing in connection with the will under consideration because while the three instrumental witnesses did not sign

immediately by the majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.

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SUPPLEMENTAL NOTES:

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c. Where must witnesses sign?

At the bottom in order to prevent additions.

Cagro v. Cagro.-- In the case, the page where the attestation clause appears was signed by the witnesses on the side and not after the attestation clause. The SC held that this was a fatal defect. The logic is that if there had been no signature at the bottom but on the sides, there will be ample room for fraud, that is, to add in the attestation clause upon the death of the decedent an essential matter w/c was not there in the first place to validate it.;

d. Must the language of the will be understood or known by the witnesses?

No. After all, witnesses need not know the contents of the will.

Q: Is it required that the witnesses knew the language of the attestation clause:

A: No. So long as it has been interpreted to them.

Q: Must the testator know the language of the attestation clause?

A: No. What is required of the testator is to know the language of the will. An express

requirement of Art. 804.

Reason for the above rules: In order to minimize fraud. The very purpose of Art. 804

and 805. The law encourages not discourages will making. Precisely bec. it wanted to encourage wills. It sets up safeguards to protect the will.

What is the effect if the instrumental witnesses did not sign the attestation clause? Why?

The will is void, because the total absence of the signature of the witnesses shows their non-participation. (In re: Testate of Vicente Cagro, April 29, 1953[92 Phil. 1032]) The attestation clause must be signed by the witnesses at the bottom thereof, and not on the left hand margin, otherwise, 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.

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If the entire document consists of only two sheets,

the first containing the will and the second, the attestation clause, there need not be any marginal signatures at all (Abangan vs. Abangan, 40 Phil. 476)

The absence of the attestation clause is a fatal defect. (In Re Neumark, 45 Phil. 481). Moreover, if the attestation clause is not signed by the attesting witnesses at the bottom thereof, the will is void since omission negates the participation of said witnesses. (In Re Testate of Vicente Cagro, 15826, Apr. 29, 1953).].

[NOTE: In the Cagro case, the dissenting opinion argued for the validity of the will for,

after all, the attesting witnesses had signed at the left hand margin, and anyway, the law

does not require this signing by the attesting witnesses at the end or bottom of the attestation clause. It is suffi cient that said clause be signed, at the bottom, or at the margins.].

c) While Art. 809 requires mere substantial compliance — still — the failure of the attestation

clause to state the number of pages is a fatal defect. (See In Re Andrada, 42 Phil. 180). However, even if not in the attestation itself, if the number of pages is put down somewhere else in the will, as long as no evidence aliunde or extrinsic evidence is required, there is deemed a substantial compliance with the law. (See Singson v. Florentino, L-4603, Oct. 25, 1952;Gonzales v. Gonzales, L-3272, Nov. 29, 1951).

________________________________________

DIGEST #3 : CAGRO vs. CAGRO April 29, 1953 ( compared to ABANGAN CASE)

FACTS:

In the attestation clause of the will, although the page containing the same is signed by the witnesses on the left-hand margin, is not signed by the attesting witnesses at the bottom.

HELD: The will is not valid. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The signatures on the left margin of the will are only 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 three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

COMPARED TO ABANGAN CASE:

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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.

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DIGESTED CASE:

Tedoro CANEDA, et al., petitioners vs. Hon. COURT OF APPEALS and William CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents. G.R. No. 103554, May 28, 1993

FACTS:

Mateo Caballero, a widower without any children, executed a last will and testament before three attesting witnesses and he was duly assisted by his lawyer and a notary public. It was declare therein that, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to specific persons, all of whom do not appear to be related to Mateo. Not long after, he himself filed a petition before the CFI seeking the probate of his last will and testament but the scheduled hearings were postponed, until the testator passed away before his petition could finally be heard by the probate court. Benoni Cabrera, one of the legatees named in the will, sought his appointment as special administrator of the testator’s estate but due to his death, he was succeeded by William Cabreara, who was appointed by RTC which is already the probate court. In the course of the hearing, herein petitioners claiming to be nephews and nieces of the testator, appeared as oppositors and objected to the allowance of the testator’s will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly executed the same; and that the signature of the testator is not genuine. The probate court rendered a decision that such will is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law. Upon appeal to CA, the petitioners asserted that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state 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. However, CA affirmed the decision of the trial court ruling and ruling that the attestation clause in the Last Will substantially complies with Article 805 of the Civil Code. Due to denial of petitioners’ motion for reconsideration, hence this appeal before the Supreme Court.

ISSUES:

1. Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective such that whether or not it affects the validity of the will.

2. Whether or not the attestation clause complies with the substantial compliance pursuant to Article 809 of the Civil Code.

RULING:

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An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution of the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. Under the 3rd paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state:

1. The number of pages used upon which the will is written;

2. That the testator signed, or expressly cause another to sign, the will and every page thereof in the presence of the attesting witnesses; and

3. That the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that the said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. ―Attestation‖ and ―subscription‖ differ in meaning. Attestation is the act of sense, while subscription is the act of the hand. The attestation clause herein assailed is that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. What is then clearly lacking, is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. The absence of the statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in Article 809 of the Civil Code: In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence, defects and imperfection in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. The defects and imperfection must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfection would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. These considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which it can be read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

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SUMMARY: CANEDA VS CA 222 SCRA 781

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

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate

proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate. Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.

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

be proved.

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state

(1) the number of the pages used upon which the will is written;

(2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and

(3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

The attestation in the will of testator states:

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

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

witnesses subscribed their respective signatures to the will in the

presence of the testator and of each other. The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to

stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to

ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

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

cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.

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SUPPLEMENTAL NOTES:

Is there any difference between attestation and subscription?

Attestation and subscription differ in meaning. Attestation is the act of the senses, while subscription is the act of the hand. The former is mental the latter is mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will

is only to write on the same paper the names of the witnesses, for sole purpose of identification. (Caneda vs. Court of Appeals, 222 SCRA 781)

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In Toboada vs. Rosal, it was held that attestation consists in witnessing the testator’s execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses’ names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of

the testator and of each other unless this is substantially expressed in the attestation.

Should the attestation clause be written in a language or dialect known to the testator?

The attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. (Caneda vs. Court of Appeals, 222 SCRA 781)

Should the language used in the attestation clause be known to the attesting witnesses?

The language used in the attestation clause need not be known to the attesting witnesses. The last paragraph of Article 805 merely requires that, in such a case, the attestation must be interpreted to the witnesses. (Caneda vs. Court of Appeals, 222 SCRA 781)

What are the essential facts which must be stated in the attestation clause?

1. The number of pages used upon which the will is written;

2. That the testator signed, or expressly caused another to sign, the will and every

page thereof in the presence of the attesting witnesses; and

3. That the attesting witnesses witnessed the signing by the testator of the will and all its

pages, and that said witnesses also signed the will and every page thereof in the

presence of the testator and of one another.

DIGESTED CASE 2: ARTICLE 809

Caneda v. CA

222 SCRA 781 | JEN SUCCESSION REVIEWER

FACTS:

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On December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence before 3 witnesses. He was assisted by his lawyer, Atty. Emilio Lumontad. In the will, it was declared that the testator was leaving by way of legacies and devises his real and personal properties to several people all of whom do not appear to be related to the testator. 4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and testament, but numerous postponements pushed back the initial hearing of the probate court regarding the will. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special administrator of the testator’s estate. Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second petition for intestate proceedings. They also opposed the probate of the testator’s will and the appointment of a special administrator for his estate. Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an order that the testate proceedings for the probate of the will had to be heard and resolved first. In the course of the proceedings, petitioners opposed to the allowance of the testator’s will on the ground that on the alleged date of its execution, the testator was already in poor state of health such that he could not have possibly executed the same. Also the genuineness of the signature of the testator is in doubt.

On the other hand, one of the attesting witnesses and the notary public testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that the testator was in good health and was not unduly influenced in any way in the execution of his will. Probate court then rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero. CA affirmed the probate court’s decision stating that it substantially complies with Article 805. Hence this appeal.

ISSUE:

W/N the attestation clause in the will of the testator is fatally defective or can be cured under the art. 809.

HELD: No. It does not comply with the provisions of the law. Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged before a notary public by the testator and the attesting witnesses. The attestation clause need not be written in a language known to the testator or even to the attesting witnesses. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to insure the authenticity thereof. It is contended by petitioners that the attestation clause in the will failed to specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. And the Court agrees. The attestation clause does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. The phrase, “and he has signed the same and every page thereof, on the space provided for his signature and on the left hand margin,” obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words” as his last will and testament.”

Clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. That the absence of the statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be probated.

Also, Art. 809 does not apply to the present case because the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. The defect in this case is

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not only with respect to the form or the language of the attestation clause. The defects must be remedied by intrinsic evidence supplied by the will itself which is clearly lacking in this case. Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be revived. Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or language of the will. This is because there is not substantial compliance with Article 805.

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DIGESTED CASE 3: CANEDA vs. CA May 28, 1993

FACTS:

The oppositors of the probate of the will asserted that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.

HELD:

Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but subscription, on the other hand, is only to write on the same paper the names of the witnesses, for the sole purpose of identification. What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.

What is then clearly lacking, in the final logical analysis, is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. The absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate.

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SUPPLEMENTARY NOTES:

Cañeda v. CA 41 SCAD 968 (1993)

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Attestation is the act of the senses, while subscription is the act of the hand. The attestation

clause provides strong legal guarantee for the due execution of a will and insures the authenticity of the same. The defects in the attestion clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textural requirements were actually complied with in the execution of the will. The attestation clause of an ordinary or attested will, which does not form part of the testamentary disposition, need not be written in a language or dialect known to the testator. The purpose of the attestation clause is to preserve in a permanent form, a record of the facts that attend the execution of a particular

will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved.

COMMENT:

(1) Essential Elements and Characteristics of a Will

(a) The making of a will is a statutory (not a natural) right. This is evident from the clause “permitted . . . to control to a certain degree.” The consequence of this is that the making of a will should be considered subordinated to both the law and public policy. (Herreros v. Gil, L-3362, Mar. 1, 1951). (See Art. 783).

A will has been def ned as species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death. (Caneda v. CA, 41 SCAD 968 [1993]).

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

(678, 688a)

COMMENT:

(1) Defi nition of ‘Holographic Will’ A holographic will is one entirely written, dated, and

signed by the hand of the testator. (Caneda v. CA, 41 SCAD 968 [1993]).

In the case of Teodoro Caneda et al. vs. Hon. CA, G.R. No. 103554, May 28, 1993, the SC ruled that there are two kinds of wills. One is the ordinary will which must be acknowledged before a notary public by the testator and the attesting witnesses, hence it is likewise known as a notarial will. Where the testator is deaf-mute, Art. 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who will read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read

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to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. The other kind of will is the holographic will which Art. 10 define as one that is entirely written, dated and signed by the hand of the testator himself.

This kind of will unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator. However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even be known to the attesting witnesses.

Problem – What is the effect of the failure to state the number of pages on which the will was written?

Answer – The failure of the attestation clause to state the number of pages on which the will was written is a fatal fl aw, despite Art. 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to.

There is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of. However, in the case of Felix Azuela vs. CA, et al., G.R. No. 122880, April 12, 2006 , there could have been no substantial compliance with the requirements under Art. 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.

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SUMMARY: CALDE VS CA June 27, 1994

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

Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.

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

Private respondents, relatives of decedent, opposed the Petitioner filed by Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect that decedent did not know; that decedent was mentally incapacitated to execute the two documents because of her advanced age, illness and deafness; that decedent’s

thumbmarks were procured through fraud and undue influence; and that the codicil was not executed in accordance with law.

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

. . . (T)he will and codicil could pass the safeguards under Article

805 of the New Civil Code but for one crucial factor of discrepancy

in the color of ink when the instrumental witnesses affixed their

respective signatures.

The question in the case at bench is one of fact: whether or not, based on the evidence submitted, respondent appellate court erred in concluding that both decedent’s Last Will and Testament, and its Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule, factual findings of the Court of Appeals are considered final

and conclusive, and cannot be reviewed on appeal to this court. In the present instance, however, there is reason to make an exception to that rule, since the finding of the respondent court is contrary to that of the trial court.

In the case at bench, the autoptic preference (From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference) contradicts the testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white — or more accurately, in black and blue — that more than one pen was used by the signatories thereto.

Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioner’s claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.

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

is there any kind of explanation for the different-colored signatures on the testaments.

c. Special requirements

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and

communicate to him, in some practicable manner, the contents thereof. (n)

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

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Art. 806 –

Every will must be acknowledged before a notary public by testator and witnesses

Cruz vs. Villasor, 54 SCRA 31

DIGESTED CASE: Agapita N. CRUZ, petitioner vs. Hon. Judge Guillermo P. VILLASOR and Manuel LUGAY, respondents. G.R. No. L-32213, November 26, 1973

FACTS:

Agapita Cruz is the surviving spouse of the deceased Valente Cruz. Agapita filed before the CFI an opposition for the allowance of the will of his late husband alleging that the will was executed through fraud, deceit, misrepresentation and undue influence because the said instrument was executed without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. However, due to unfavorable decision, Agapita appealed by certiorari before the Supreme Court.

ISSUE:

Whether or not the supposed last will and testament was executed in accordance with law.

RULING:

Of the three instrumental witnesses, one of them is at the same time the Notary Public before whom the will was supposed to have been acknowledged. The Supreme Court is inclined to sustain the last will and testament in question was not executed in accordance with law. 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. To acknowledge before means to avow. Consequently, 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. To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 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. The result would be that only two witnesses appeared before the notary public for or that purpose. In the circumstance, the law would not be duly observed.

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DIGESTED CASE 2:Cruz v. Villasor

54 SCRA 752 | Dizon

FACTS:

The CFI of Cebu allowed the probate of Valente Z. Cruz’s last will and testament. His surviving spouse, Agapita Cruz, opposed the allowance of the will alleging it was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Agapita appealed the allowance of the will by certiorari.

ISSUE:

W/N the will was executed in accordance with law (particularly Articles 805 and 806 of the NCC, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.).

HELD:

NO. Of the three instrumental witnesses to the will, one of them (Atty. Teves) is at the same time the Notary Public before whom the will was supposed to have been acknowledged. 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. To acknowledge before means to avow (Javellana v. Ledesma; Castro v. Castro); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. Consequently, 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. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement (Balinon v. De Leon). That function would defeated if the notary public were one of the attesting instrumental witnesses. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud, would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized.

There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon. But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to in these cases merely acted as instrumental, subscribing attesting witnesses, and

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not as acknowledging witnesses. Here, the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805-06. Probate of will set aside.

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SUPPLEMENTAL NOTES:

CRUZ VS VILLASOR 54 SCRA 31

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

f. Holographic wills

1. In general

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

2. Specific requirements

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form,

and may be made in or out of the Philippines, and need not be witnessed. (678, 688a)

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

testamentary dispositions. (n)

Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date,

such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

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

7. Notarization.-- A will is a public instrument that is why it must notarized.

Art. 806. Every will must be acknowledged before a notary public by the testator

and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

Balane:

1. Cruz v. Villasor.-- This case involves a will wherein the notary public was also one of the

three instrumental witnesses. Did the will comply w/ the requirement of 3 witnesses? No. The SC gave 2 reasons:

(1) The notary public can not be an oath witness and at the same time an oath taker. It is impossible for him to acknowledge before himself;

(2) the aim of the notary public to insure the trustworthiness of the instrument would be lost bec. he will try to insure the validity of his own act.

General rule: The notary public cannot be a witness.

Exception: When there are more than 3 witnesses. In such a case, the requisite of 3 witnesses is achieved.

May the notary public himself be a witness in a last will and testament? Why?

No, because the notary public cannot be considered as third instrumental witness since he could not have acknowledge before himself his having signed the will. 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. To permit such a situation to obtain would be sanctioning a sheer absurdity. (Cruz vs. Villasor, 54 SCRA 31)

Can the notary public be counted as one of the attesting witnesses?

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In Cruz vs. Villasor, 54 SCRA 31, 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. Consequently, if the third witness was 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. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Note that the affixing of documentary stamp is not required for validity.

(2) Disqualifi cation of Notary Public

The notary public before whom the will is acknowledged cannot be one of the three witnesses to said will, in view of the absurdity of one person acknowledging something before himself. (Cruz v. Villasor, et al., L-32213, Nov. 26, 1973).

(5) Disqualifi cation of Notary Public Concerned

The notary public before whom the notarial will is acknowledged is disqualifi ed to be a witness to said will. It would be absurd for him (as witness) to be acknowledging something

before himself (as notary public). (Cruz v. Villasor, et al., L- 32213, Nov. 26, 1973).

CRUZ vs. VILLASOR November 26, 1973

HELD: The last will and testament in question was not executed in accordance with law. 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. To acknowledge before means to avow, to own as genuine, to assent, to admit-, and "before" means in front or preceding in space or ahead of. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation. 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 the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements would be thwarted.

Notarial Acknowledgment. — Another mandatory requirement in the execution of an ordinary will is that it must be acknowledged before a notary public by the testator and the instrumental witnesses. The notary public in such case shall not be required to retain a copy of the will, or fi le another with the offi ce of the Clerk of Court as in the case of other instruments.63 Although the law speaks of “every will,” it is apparent that the provision prescribing this requirement is applicable only to ordinary wills. Under the Spanish Civil Code, notarial intervention was also required, although it was subsequently abrogated by the Code of Civil Procedure.

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Cruz vs. Villasor

54 SCRA 31

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit “E”) was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the fi rst requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Panares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same

time the Notary Public before whom the will was supposed to have acknowledged. Reduced to simpler terms, the will was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: “It is said that there are practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator’s signature under oath rather than as attesting

the execution of the instrument.” Speaking through Justice Esguerra, the Supreme Court

held: “After weighing the merits of the confl icting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. 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. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and “before” means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster’s New International Dictionary 2d. p. 245). Consequently, 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. To permit such a situation to obtain would be sanctioning a sheer absurdity.

“Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. (Balinon v. de Leon, 50 O.G. 583). 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 the will as it directly involves himself and the

validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud (Report of the Code Commission, p. 106-107), would be thwarted.

“Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the execution of the document he has notarized. (Mahilum v. Court of Appeals, 64 O.G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 III. 130). There are others holding that his signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson

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v. Ferguson, 47 S. E. 2d. 346; In Re Douglas’ Will, 83 N. Y. S. 2d, 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee’s Estate 160 N. W. 900; Merill v. Boal, 132 A. 721; See also Trenswith v. Smallwood, 15 So. 1030). But these

authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein, because the notaries public and witnesses referred to in the aforecited cases merely acted as instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary public acted not only as attesting witness but also as acknowledging witness, a situation not envisaged by Article 806 of the Civil Code which

reads:

“Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or fi led another

with the offi ce of the Clerk of Court.” “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 a contravention of the provisions of 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. The result would be, as has been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly observed. “FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit “E”) is declared not valid and hereby set aside.”

___________________

DIGESTED CASE: Ursulina Ganuelas v. Robert Cawed

G.R. No. 123968; April 24, 2003

Facts:

Celestina Ganuelas executed a Deed of Donation of real prop covering seven parcels of land in favor of her niece Ursulina Ganuelas .Celestina executed a docu purporting to set aside the deed of donation. More than a month later, Celestina died(1967) without issue and any surviving ascendants and siblings. After Celestina's death, Ursulina had been sharing the produce of the donated properties with private respondents Leocadia G. Flores, et al., nieces of Celestina. In 1982, Ursulina secured tax decs in her name over the donated props and since then, she refused to give private respondents any share in the produce. PRs filed a complaint against Ursulina. The complaint alleged that the Deed of Donation executed by Celestina in favor of Ursulina was void. The trial court rendering judgment declaring null and void the Deed of Donation and ordered the partition of the estate of Celestina.

Issue:

Donation inter vivos or mortis causa??

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Ruling:

TC decision affirmed! Donation inter vivos differs from donation mortis causa in that in the former, the act is immediately operative even if the actual execution may be deferred until the death of the donor, while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-testator. If the donation is inter vivos, it must be executed and accepted with the formalities prescribed by Articles 748 and 749 of the Civil Code, except when it is onerous in which case the rules on contracts will apply. If it is mortis causa, the donation must be in the form of a will, with all the formalities for the validity of wills, otherwise it is void and cannot transfer ownership.

The distinguishing characteristics of a donation mortis causa are the following:

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

3. That the transfer should be void if the transferor should survive the transferee.

In the donation subject of the present case, there is nothing therein which indicates that any right, title or interest in the donated properties was to be transferred to Ursulina prior to the death of Celestina.

The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Celestina intended to transfer the ownership of the properties to Ursulina on her death, not during her lifetime. More importantly, the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no further force and effect shows that the donation is a postmortem disposition.

As stated in a long line of cases, one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee.

More. The deed contains an attestation clause expressly confirming the donation as mortis causa. As the subject deed then is in the nature of a mortis causa disposition, the formalities of a will under Article 728 of the Civil Code should have been complied with, failing which the donation is void and produces no effect.

_________________________________________

DIGESTED CASE 2:

GANUELAS vs. CAWED April 24, 2003

FACTS:

Celestina Ganuelas executed a deed of donation of real property in favor of her niece Ursulina which provides that it would take effect upon her death. However, the deed was revoked. Thereafter, Celestina died without issue and any surviving ascendants and siblings. After Celestina‘s death, Ursulina had been sharing the produce of the property with private respondents, other nieces. After 24 years from the execution of the deed, Ursulina secured a tax declaration in her name

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and refused to share the produce to respondents. Thus, they filed an action to return the possession and ownership of the property contending that the instrument was void because it was a donation mortis causa and it failed to comply with the formalities of a will.

ISSUE: WON the donation is mortis causa.

HELD: Yes, it is a donation mortis causa There is nothing in the subject deed which indicates that any right, title or interest in the donated properties was to be transferred to Ursulina prior to the death of Celestina. In fact, it was stipulated that it would take effect after her death. As the subject deed was in the nature of a mortis causa disposition, the formalities of a will should have been complied with, failing which the donation is void and without effect.

______________________________

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Art. 808 - If testator is blind

ARTICLE 808. I

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

DIGESTED CASE: In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, Cesar ALVARADO, petitioner vs. Hon. Ramon GAVIOLA G.R. No. 74695, September 14, 1993

FACTS: Brigido Alvarado executed a notarial will entitled, ―Huling Habilin‖ wherein he disinherited an illegitimate son, Cesar Alvarado, and expressly revoked a previously executed a holographic will at the time awaiting probate before RTC. As testified to by the three instrumental witnesses, the notary public and Cesar, the testator did not read the final draft of the will, instead, Atty. Rino, as the lawyer who drafted the document read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. While the testator’s will was admitted to probate, a codicil was subsequently executed changing some dispositions in the notarial will to generate cash for the testator’s eye operation because he was then suffering from glaucoma. But the disinheritance and the revocatory clauses remained and as in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was Atty. Rino who read it alound in his presence and in the presence of the three instrumental witnesses and of the notary public. Upon the testator’s death, Atty Rino as executor filed a petition for probate of the notarial will which was in turn opposed by Cesar alleging that the will sought to be probated was not executed and attested as required by law. Upon failure of Cesar to substantiate his Opposition, a Probate Order was issued from which an appeal was made to IAC stating that the probate of the deceased’s last will and codicil should have been denied because the testator was blind within the meaning of the law at the time his ―Huling Habilin‖ and the codicil thereto was executed;and that since reading required by Art. 808 was admittedly not complied with. CA concluded that although Art. 808 was not followed, there was, however, as substantial compliance.

ISSUES:

1. Whether or not Brigido Alvarado was blind within the meaning of Article 808 at the time his ―Huling Habilin‖ and codicil were executed.

2. If so, whether or not the requirement of double-reading in said Article was complied with such that whether or not, they were validly executed.

RULING:

Art. 808 applies not only to blind testators but also to those who, for one reason or another, are ―incapable of reading their wills. Since the deceased was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his ―poor,‖ ―defective,‖ or ―blurred‖ vision, there can be no other course but to conclude that he comes within the scope of the term ―blind’ as used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instruction. Hence, to consider his will as validly executed and entitled to probate, it is essential to ascertain whether or not Art. 808 had been complied with.

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There is no evidence and Cesar does not allege that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the ―Huling Habilin,‖ the day of the execution was not the first time that the testator had affirmed the truth and authenticity of the contents of the draft. Moreover, with four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents. This is especially true considering the fact that the three instrumental witnesses were persons known to the testator. The spirit behind that law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure authenticity of the will, the formal imperfection should be brushed aside when they do not affect its purpose and which, when taken into account may only defeat the testator’s will. Substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of will 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 the testamentary privilege.

__________________________________

DIGEST CASE 2: Alvarado v. Gaviola 226 SCRA 347 | JEN SUCCESSION REVIEWER

FACTS:

On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will entitled “Huling Habilin” wherein he disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly revoked a previously executed holographic will at the time awaiting probate before the RTC of Laguna. According to Bayani Ma. Rino, private respondent, he was present when the said notarial will was executed, together with three instrumental witnesses and the notary public, where the testator did not read the will himself, suffering as he did from glaucoma. Rino, a lawyer, drafted the eight-page document and read the same aloud before the testator, the three instrumental witnesses and the notary public, the latter four following the reading with their own respective copies previously furnished them. Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed changing some dispositions in the notarial will to generate cash for the testator’s eye operation. Said codicil was likewise not read by Brigido Alvarado and was read in the same manner as with the previously executed will. When the notarial will was submitted to the court for probate, Cesar Alvarado filed his opposition as he said that the will was not executed and attested as required by law; that the testator was insane or mentally incapacitated due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue pressure and influence on the part of the beneficiary; and that the signature of the testator was procured by fraud or trick.

ISSUE:

W/N notarial will of Brigido Alvarado should be admitted to probate despite allegations of defects in the execution and attestation thereof as testator was allegedly blind at the time of execution and the double-reading requirement under Art. 808 of the NCC was not complied with.

HELD:

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YES. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will. Cesar Alvardo was correct in asserting that his father was not totally blind (of counting fingers at 3 feet) when the will and codicil were executed, but he can be so considered for purposes of Art. 808. That Art. 808 was not followed strictly is beyond cavil. However, in the case at bar, there was substantial compliance where the purpose of the law has been satisfied: that of making the provisions known to the testator who is blind or incapable of reading the will himself (as when he is illiterate) and enabling him to object if they do not accord with his wishes. Rino read the testator’s will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgment take place. There is no evidence that the contents of the will and the codicil were not sufficiently made known and communicated to the testator. With four persons, mostly known to the testator, following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will to 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.

Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will.

________________________________

DIGESTED CASE 3:ALVARADO vs. GAVIOLA September 14, 1993

FACTS: The testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the 8-paged document, read the same aloud in the presence of the testator, the 3 instrumental witnesses and the notary public. The latter 4 followed the reading with their own respective copies previously furnished them. Said will was admitted to probate. Later on, a codicil was executed, and by that time, the testator was already suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.

HELD: Article 808 not only applies to blind testators, but also to those who, for one reason or another, are incapable of reading their wills. Hence, the will should have been read by the notary public and an instrumental witness. However, the spirit behind the law was served though the letter was not. In this case, there was substantial compliance. Substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that 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 the testamentary privilege. In this case, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place.

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__________________________________

SUPPLEMENTAL NOTES:

What is the effect of failure to comply with the requisites of reading the will under Article 808?

If the will was not read twice by the persons mentioned in the will, the will is void.

Provision of Article 808 is mandatory. This provision is also applicable when the testator is incapable of reading the will himself (as when he is illiterate) (Garcia vs. Vasquez, 32 SCRA 489); or due to poor, defective or blurred vision (Alvarado vs. Gaviola, Jr. 226 SCRA 348).

What are the distinctions between Articles 807 and 808?

1. In Article 807 (deaf or deaf-mute testator) – if the testator is literate, he must personally

read the will. In Article 808 (blind testator) – whether literate or not, the will must be

read ti him because he cannot see.

2. In Article 807 – if illiterate, the will must be read by two persons designated by the

testator. In Article 808 – whether literate or not, the will must be read twice. The

reading shall be done by one of the subscribing witnesses and by the notary

public before whom the will is acknowledged.

3. In Article 807 – reading by the two designated persons is not enough. They

must communicate the contents to the testator. In Article 808 – reading is enough

because the testator can hear and listen.

COMMENT:

(1) Effect of Substantial Compliance

(a) This Article provides the rule for substantial compliance

that is, as long as the purpose sought by the attestation clause is obtained, the same should be considered valid.

Alvarado v. Gaviola, Jr. 44 SCAD 731 (1993)

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Substantial compliance is acceptable where the purpose of the law has been satisfi ed, the reason being that the solemnities surrounding the execution of a will are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and

infl exible as to destroy the testamentary privilege. Although there should be strict compliance with the substantial requirements of the law in order to ensure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will.

(b) Note however that the law speaks not of defects of substance but defects and imperfections —

1) in the FORM of attestation, or

2) in the LANGUAGE used therein.

If a testator is a deaf-mute and also blind, may he still make a will?

ANS.: No, unless in some way, the contents thereof may properly be communicated to him in accordance with the legal requirements.

Alvarado v. Gaviola, Jr. 44 SCAD 73 (1993)

Article 808 of the Civil Code applies not only to blind testators but also to those who, for one reason or another, are incapable of reading their wills.

__________________________________________________

Art. 809 - Defects and imperfections in the form and language of attestation

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

SUPPLEMENTAL NOTES:

The attestation clause of X’s will does not contain his signature. At its probate, it is being opposed on that basis. Is the opposition correct? Why?

No, because the attestation clause is not an act of the testator. It is an act of the instrumental witnesses. The testator’s failure to sign it is not fatal; it is immaterial.

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(Abangan vs. Abangan, 40 Phil. 467; Estate of Paula Tray, L- 2415, July 31, 1950; Fernandez vs. Vergel de Dios, 46 Phil.922)

_____________________________________

Sebastian vs. Panganiban, 59 Phil 653 NO DIGEST

_____________________________________

NO DIGEST

Teodoro Caneda vs. Court of Appeals, G.R. No. 103554, May 28, 1993- refer above case

Art. 810 - Holographic will

ARTICLE 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a)

DIGESTED CASE: In the Matter of the Intestate Estate of Andres G. De Jesus and Bibiana Roxa de Jesus, Simeon R. ROXAS and Pedro ROXAS de Jesus, petitioners vs. Andres R. de JESUS, Jr. G.R. No. L-38338, January 28, 1985

FACTS: After the death of spouses Andres and Bibiana de Jesus, a special proceeding was instituted by Simeon, brother of Bibiana. Simeon was then appointed administrator of the estate and consequently, he delivered to the lower court a document purporting to be the holographic will of Bibiana which was then set for a hearing. Luz Henson, one of the compulsory heirs filed an opposition to probate assailing the purported holographic Will of Bibiana was not executed in accordance with law. However, the lower court issued an order allowing the probate which was found to have been duly executed in accordance with law. A motion for reconsideration was then filed by Luz assailing that the alleged holographic will was not dated as required by Article 810 of the Civil Code and contending that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with. The court then reconsidered its earlier order and disallowed the probate of the holographic will on the ground that the word ―dated‖ has generally been held to include the month, day, and year.

ISSUE: Whether or not the date (FEB/61) appearing on the holographic will of the deceased Bibian Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.

RULING: ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. 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

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Will is established and the only issue is whether or not the date ―FEB/61‖ appearing on the holographic will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

DIGEST CASE 2: ROXAS vs. DE JESUS, JR. January 28, 1985

FACTS: The will is dated "FEB./61" and states: "This is my will which I want to be respected although it is not written by a lawyer. . . "

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

DIGESTED CASE 3: Roxas v. De Jesus 134 SCRA 245 | Lantion

FACTS:

Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for partition of the estate of the deceased and also delivered the holographic will of the deceased. Simeon stated that he found a notebook belonging to deceased, which contained a “letter-will” entirely written and signed in deceased’s handwriting. The will is dated "FEB./61 " and states: "This is my will which I want to be respected although it is not written by a lawyer. Roxas relatives corroborated the fact that the same is a holographic will of deceased, identifying her handwriting and signature. Respondent opposed probate on the ground that it such does not comply with Article 810 of the CC because the date contained in a holographic will must signify the year, month, and day.

ISSUE:

W/N the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.

HELD:

Valid date. This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. The underlying and fundamental objectives permeating the provisions of the law wills consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of

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fraud and the exercise of undue and improper pressure and influence upon the testator. If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena 56 Phil. 282). If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. In Abangan v. Abanga 40 Phil. 476, we ruled that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ... In particular, 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 (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case. We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

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

SUPPLEMENTAL NOTES:

Balane:

A. Advantages:

1. Cheaper, simple, easier to revise, no notary public needed

2. Absolute secrecy is guaranteed- only you, the father and the members of the family will know its contents.

Disadvantages:

1. Precisely bec. it guarantees secrecy and is simpler, it is also easier to falsify-- less

people you need to collude w/-- only yourself, but in attested will, you need at least four (4) other people.

2. It may not express testator's wishes due to faulty expression

3. No protection against causes vitiating consent bec. there are no witnesses-- danger is higher.

4. Does not reveal testamentary capacity of testator due to lack of witnesses

5. Easier to conceal than an attested will.-- you can allege that no will was made

6. Generally, danger of ambiguity is greater than in attested wills.-- bec. testator is not a

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lawyer, he may not understand technical and legal words. In attested will, the testator is assisted by a lawyer. JBL Reyes opines that the disadvantages outweigh the advantages. He suggested a middle ground, a mystic will (testamento cerrado.) It is not as strict as a notarial will, but not as fraught w/ risks as a holographic will. This kind of will is sealed in an envelope and brought to the notary who puts his seal and signs to authenticate, and it will be opened only upon the death of the testator. This kind of will minimizes the risk of fraud and protects the privacy of the testator.

B. Real Requirements.—

MANDATORY.-- must be by the hand of the testator himself.

1. Written entirely by the testator

E.g., (a) If partly by the testator and partly by another person, VOID

(b) If another person wrote an additional part w/o knowledge of the testator, the

will is VALID but the addition is VOID.

(c) If another person wrote an additional part w/ the knowledge of the testator,

VOID.

2. Dated

a. (1) Roxas v. de Jesus.-- On the will, the date was written as "Feb./ 61." Is it

valid? Yes.

General rule: Day, month and year must be indicated.

Exception: When 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

"Feb./61" is valid, then it should be allowed under the principle of substantial compliance.

COMMENT: I am not happy w/ the decision bec. the period covers one whole month. One of

the purposes is to know when it was executed, specially in the cases where there are other wills.

Example, another will dated Feb. 17/ 61. As such, it is dangerous to say that "Feb./61" is

sufficient.

(2) Labrador v. Ca.-- In this case , the date was indicated in the body of the will

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as part of the narration. Is this valid? Yes. It is not necessary that the will be separate from the body. In fact, it can be anywhere in the will as long as the date appears in the will.

b. If the date is proven wrong, then its validity depends on whether the error is deliberate or not. If deliberate, the will is considered not dated and the will is void. If not deliberate, the

date will be considered as the true date.

c. Date is usually written by putting the day, month, and year. However, other ways may

be adopted such as "Christmas day of 1995."

3. Signature.-- Commentators have said that the signature must consist of the testator's

writing his name down. The reason for this is since he is able to write his will, then he is literate enough to write his name.

C. 1. Are holographic wills in letters allowed? Yes, provided there is an intent on the part of the testator to dispose of the property in the letters and the 3 requisites are present.

E.g., "I give you 1/2 of my estate as provided for in the document I kept in the safe."

This is a holographic will bec. the letter does not in itself dispose of the property.

2. Can a blind testator make a holographic will? Yes. There is no form required. What

is important is the presence of the 3 requisites.

X executed a holographic will dated Christmas Day 1990”. Is the will valid? Why?

Yes, because it was completely dated, written and signed by the testator. The date Christmas day 1990 is a substantial compliance with the requirements of the law.

(Roxas vs. De Jesus, Jr. G.R. No. 38338, Jan. 28, 1985[ 134 SCRA 245]) The law has a tender regard for the will of the testator expressed in his last will and testament because the

testator’s disposition is better than that which the law can make. Where the date written is “Feb/61” without the specific date of the month having been indicated, the probate

of the holographic will was allowed following the rule of substantial compliance.

How must the date be stated?

The date must state the day, month and year.

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However, notable is the case of Roxas vs. de Jesus (134 SCRA 243 [1985]) where a holographic will stated only the month and the year, wherein the Supreme Court ruled that the date substantially complied with the requirements of Article 810 since there was no appearance of fraud, bad faith, undue influence and pressure. It is not suggested however that Roxas be imitated. The general rule as stated above still must be complied with.

SUMMARY: Roxas v. De Jesus, Jr.GR 38338, Jan. 28, 1985

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 infl uence and pressure and the authenticity of the will is established and the only issue is whether or not the date “Feb./61” appearing on the holographic will is a valid compliance with Art. 810 of the Civil Code, probate of the holographic will should be allowed

under the principle of substantial compliance.

DIGESTED CASE 4: SUCCESION- dated “Feb. /16

Roxas vs. De Jesus

Intestate Estate of Andres and BibiananDe Jesus vs. Andres De Jesus, Jr.

G.R L-38338 January 28, 1985

Gutierez, HJr;

Facts:

Petitioner Simeon R. Roxas, was appointed administrator of his sister Bibiana’s estate. He found a notebook belonging to his sister, containing a letter will address to her children. It was entirely written and signed by Bibiana. The date of which was written: Feb/61”. Handwriting and signature that was written on whatpurposed to be her holographic will.

Issue:

Whether or not the date “Feb. /61” appearing on the holographic will of the

deceased is a valid compliance with the Art. 810 of the Civil Code?

Ruling:

The court agreed with the petitioner when it contented that liberal construction of the holographic will should prevail. Neither absents any evidence of bad faith and fraud in its execution nor was there any substitution of wills and testaments. There is no question that the holographic will of the deceased was entirely written, dated and signed by the testratix herself and in a language known to her.

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The objection interposed by respondent Luz Henson that the holographic Will

is fatally defective because the date “Feb/.61” appearing on the will is not sufficient

compliance with Art. 810 of NCC was declared “too technical to be entertained” The

SC pronounced that the Feb/61 appearing on the will is valid applying the principle

of substantial compliance.

DIGESTED CASE 5: ROXAS VS DE JESUS 134 SCRA 245

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

...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the

holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is

written, and that the date "FEB./61 " was the date when said Will was executed by their mother.

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

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

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may

be made in or out of the Philippines, and need not be witnessed.

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

We agree with the petitioner.

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

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

As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is

established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

DIGESTED CASE: LABRADOR vs. CA April 5, 1990

FACTS:

The 1st paragraph of the 2nd page of the holographic will provides: "And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father."

HELD:

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. These requirements are present in the subject will. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. The will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will.

DIGESTED CASE 2: Labrador v. CA

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184 SCRA 170 | JEN SUCCESSION REVIEWER

FACTS:

Melecio died leaving behind a parcel of land to his heirs. However, during probate proceedings, Jesus and Gaudencio filed an opposition on the ground that the will has been extinguished by implication of law alleging that before Melecio’s death, the land was sold to them evidenced by TCT No. 21178. Jesus eventually sold it to Navat. Trial court admitted the will to probate and declared the TCT null and void. However, the CA on appeal denied probate on the ground that it was undated.

ISSUE: W/N the alleged holographic will is dated, as provided for in Article 810 of CC.

HELD: YES. 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. The intention to show March 17 1968 as the date of the execution is plain from the tenor of the succeeding words of the paragraph. It states that “this being in the month of March 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than Melecio Labrador, their father.” This clearly shows that this is a unilateral act of Melecio who plainly knew that he was executing a will.

SUPPLEMENTAL NOTES:

The holographic will of A has no date except the one found on the second page of the same. Is the

will valid? Why?

Yes, since the law does not specify any particular location where the date should be placed. (Labrador vs. CA, 184 SCRA 170)

Roberto and Thelma Ajero vs. Court of Appeals, G.R. No. 106720, September 15, 1994

Art. 811 - Probate of holographic will

ARTICLE 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (691a)

____________________________________________________

DIGESTED CASE: Gan v. Yap 104:509 | Lugtu

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FACTS:

Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in Manila Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with a petition for the probate of a holographic will allegedly executed by the deceased. The will was not presented because Felicidad’s husband, Ildefonso, supposedly took it. What was presented were witness accounts of relatives who knew of her intention to make a will and allegedly saw it as well. According to the witnesses, Felicidad did not want her husband to know about it, but she had made known to her other relatives that she made a will. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Judge refused to probate the alleged will on account of the discrepancies arising from the facts. For one thing, it is strange that Felicidad made her will known to so many of her relatives when she wanted to keep it a secret and she would not have carried it in her purse in the hospital, knowing that her husband may have access to it. There was also no evidence presented that her niece was her confidant. In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence that Felicidad did not and could not have executed such holographic will.

ISSUE:

1. May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?

2. W/N Felicidad could have executed the holographic will.

HELD:

1. No. The will must be presented.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed."

This is a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. With regard to holographic wills, no such guaranties

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of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." “In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses need not have seen the execution of the holographic will, but they must be familiar with the decedent’s handwriting. Obviously, when the will itself is not submitted, these 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 Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. Could Rule 77 be extended, by analogy, to holographic wills? (NO) Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen — an implied admission that such loss or theft renders it useless. As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.(According to the Fuero, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. Taking all the above circumstances together, we reach the conclusion that 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. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). 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. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein

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petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.

2. No. Even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.

________________________________

DIGESTED CASE 2: Testate Estate of Felicidad Esguerra Alto-Yap deceased Fausto E. GAN, petitioner-appellant, vs. Ildefonso YAP, oppositor-appellee. G.R. No. L-12190; August 30, 1858

FACTS: After the death of Felicidad Esguerra Alto-Yap, Fausto Gan filed a petition for the probate of a holographic will allegedly executed by the fomer. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. The will itself was not presented. Gan tried to establish its contents and due execution by the statements of allegedly four (4) witnesses to the execution of the alleged will. After hearing the parties and considering their evidence, the court refused to probate the alleged will. Due to the denial of motion for reconsideration, Gan appealed.

ISSUE: Whether or not a holographic will may be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator.

RULING: The Rules of Court allow proof (and probate) of a lost or destroyed will by secondary evidence – the testimony of witnesses in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. The difference between holographic wills and ordinary will lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself, in the second, 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. The evidence of presented by Gan is refused to be credited. In addition to the dubious circumstance described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relative who had received nothing from it. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband. Further, if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that :‖clear and distinct‖ proof required by the Rules of Court.

_______________________________________________________

SUPPLEMENTAL NOTES:

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Probate of Holographic Wills. —

According to Art. 811, if the probate of a holographic will is not contested, it shall be necessary that at least one witness who knows the hand writing and signature of the testator shall explicitly declare that the will and the signature of the testator are in the handwriting of the testator. If the probate is contested, at least three of such witnesses shall be required. Nevertheless, in the absence of any competent witness, expert testimony may be resorted to, if the court deems it necessary. There are, however, two interesting problems which will arise as a result of these requirements. They are:

First: If the testator himself, while he is still living, will present his holographic will for probate, shall the above requirements still have to be complied with? According to Sec. 12, Rule 76 of the Rules of Court: “Where the testator himself petitions for the probate

of his holographic will and no contest is fi led, the fact that he affi rms that the holographic will and the signature are in his own handwriting, shall be suffi cient evidence thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof, shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.”

Second: If the holographic will was lost or was destroyed by a third person without any authorization given by the testator during the lifetime of the latter, or if it was lost or destroyed or stolen after his death, would it still be possible to have the will admitted to

probate, granting that its loss or unauthorized destruction, as well as its due execution and contents can be properly established by secondary evidence in accordance with the Rules of Court? Again, our answer must be in the negative. While it is true that under the

Rules of Court, the proof of lost or destroyed wills by secondary evidence, such as by the testimony of witnesses, in lieu of the original documents, is expressly recognized,81 nevertheless, such Rules, which were promulgated in 1940, could not have contemplated holographic wills which were not then recognized. Furthermore, because of the special nature of holographic wills as stated in Art. 810 of the Civil Code as well as the special requirements for their probate as stated in Art. 811 of the same Code, it is clear that the law regards

the document itself as material proof of authenticity. Consequently, a holographic will cannot be probated unless the document itself is presented to the probate court for examination and unless there is compliance with the special requirements stated in Art. 811.82 It is, however, possible that a photostatic copy, or even a mimeographed or carbon copy may be substituted for the original document. This is so, because, after all, in these cases, compliance with the requirements stated in Art. 811 would still be possible. The authenticity of the handwriting and signature of the testator may still be examined and tested by the probate court.83

SUMMARY: Gan vs. Yap

104 Phil. 509

The records show that the alleged testatrix, Felicidad Esguerra Yap, died on Nov. 20, 1951, leaving considerable properties. A few months later, a petition for the probate of a holographic will allegedly executed by her was fi led in the Court of First Instance of Manila. Her husband, Ildefonso Yap, opposed the probate, asserting that the deceased had not executed any

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will during her lifetime. The will itself was not presented, butthe petitioner tried to establish its due execution and contents by the testimony of witnesses, who declared that they had seen the will and had read its contents. After hearing, the lower court denied the probate of the will. Hence, this appeal. The question to be resolved, therefore, is whether or not a holographic will which is lost or destroyed may be admitted to probate upon the testimony of witnesses regarding its due execution and contents in accordance with Rule 77 of the Rules of Court. Holding that such provisions of the Rules of Court cannot be applied to

holographic wills, not only because such wills could not have been contemplated by such provisions which were prepared long before the effectivity of the new Civil Code, but because of the special nature of holographic wills as stated in Art. 810 of the Civil Code as well as the special requirements for their probate as stated in Art. 811 of the same Code, the Supreme Court, affi rming the decision of the lower court, declared: “When ordinary wills are submitted to the courts for allowance, authenticity and due execution are the dominant requirements to be fulfilled. For that purpose the testimony of one of the subscribing witnesses would be suffi cient, if there is no opposition. If there is, the three must testify, if available. In the matter of holographic wills, no such guaranties of truth and veracity are demanded, since they need no witnesses; provided, however, that they are ‘entirely written, dated and signed by the hand of the testator himself.’ The law, it is reasonable to suppose,

regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hand of the testator

himself. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affi rming that it is in the testator’s hand. However, the oppositor may present other witnesses who also know the testator’s handwriting, or

some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available.”

In lieu of the original of the holographic will, may photo static copies be submitted to probate the will?

According to the case of Rodelas vs. Aranza (119 SCRA 16 [1982]), certainly. It explained that since the probate proceedings required comparison between writing samples of the testator and of the handwritten will, then a copy of the same would suffice – “But a photostatic copy or Xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator”.

However, the ruling is questionable precisely because as basis for such a claim that copies may be used to probate a holographic will, the Court cited Footnote 8 of Gan vs. Yap (supra). A footnote is hardly doctrinal. It is not even obiter – it is of a lower lot.

Hence, one can expect that the ruling in Rodelas can and will be reviewed by a more enlightened Court in the near future.

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Can a holographic will be probated upon the testimony of witnesses? Is it necessary to produce the document itself? (Can a lost holographic will be

probated?)

In Gan vs. Yap, 104 Phil. 509, if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is

the handwriting of the testator in said will.

Can it be proven by a photostatic or Xerox copy?

A photostatic or Xerox copy of the holographic will may be allowed because a comparison can be made with the standard writings of the testator. (Rodelas vs. Aranza, 119 SCRA 16). In Gan vs. Yap, the Court ruled that “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. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity. But in Footnote 8 of said decision, it says that “Perhaps it may be proved by a photographic or photastatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probatecourt.”

What are the requirements of probate of a holographic will?

1. At least one witness who knows the handwriting and signature of the testator explicitly

declaring that the will and the signature are in the handwriting of the testator (see Article

811)

2. If the will is contested, at least three of such witnesses shall be required (Ibid)

3. (1) In the absence of any competent witness referred to in the preceding paragraph, and

(2) if the Court deem it necessary, expert testimony may be resorted to (Ibid)

4. Presentation of the will itself (Gan vs. Yap, 104 Phil 509 [1958])

Why is it required that the holographic will be produced for the will to be probated?

The rationale of the rule is laid down in the case of Gan vs. Yap (supra). Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance to probate. In order to prove such authenticity and due execution, the Court deems the document itself as the material proof of authenticity and as its own

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safeguard. Without the will, means of opposition to the will and of assessing the evidence would not be available. The only guarantee of authenticity would have disappeared.

Also, allowing for probate to pursue without production of the will would open the door to fraud. Furthermore, with respect to the witnesses, those of a holographic will testify as to their opinion of the handwriting – an opinion which can no longer be tested in the absence of the actual holographic will.

Will Article 837 apply if the first will is impliedly revoked?

No. There terms of this article apply only where the revocation of the first will by the second is express. In the case of implied revocation, the revocation of the second will by the third will revives the first will, unless the third will is itself inconsistent with the first.

What is another exception to Article 837?

An obvious exception is a case where the second will is holographic and it is revoked by physical destruction because the doctrine of Gan vs. Yap (supra) would apply.

Probate of Lost or Destroyed Notarial Wills

If a notarial will has been lost or destroyed without intent to revoke, its contents may nevertheless still be proved by:

(a) oral or parol evidence

(b) carbon copies (Borromeo v. Casquijo, L-26063)

— This is because a carbon copy signed by all concerned is just as good as the original. (Lugay v. Llamas, C.A., 40 O.G. [Sup. 11] p. 160). As a matter of fact, it is error to dismiss a probate proceeding on the mere ground that the copy presented is only a carbon copy. (Lipana v. Lipana, 40 O.G. 198). After all, a “duplicate original’’ (a signed carbon copy or

duplicate executed at the same time as the original) is as GOOD as the original, and may be introduced in evidence without accounting for the non-production

of the other copies. (See Maria Malilum, et al. v. Court of Appeals, L-17970, June 30, 1966). The production and admission of a carbon duplicate without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate, unless substantial rights are adversely affected. (Celso Icasiano v. Natividad Icasiano, et al., L-18979, June 30, 1964). Incidentally, if the original presented is

defective and invalid, there is in law no other will but the duly signed carbon duplicate, which is probatable. (Ibid.).

[NOTE: Holographic wills, which have been lost or destroyed without intent to revoke, cannot be probated.(See comment No. 2 under Art. 811, see also Gan v. Yap,104 Phil. 509).].

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Documentary Requirement

a. General rule: The will itself must be presented

Gan v. Yap.-- In the case, the proponent of the supposed will sought to establish its

contents through extrinsic evidence. The SC denied such attempt to probate a holographic will that was not presented before the court. The SC said that the actual will should be presented to the court. The reason is that the will itself is the only material proof of authenticity. How can they oppose the will if the will is not there?

E.g., You are presented in the probate court the bloody test papers of A in Civil Law, just

to show the handwriting of A, but you do not have the will. How will you compare when you do not have any will to be compared. But if the will is there, I would be the first one to prove your handwriting by showing your bloody test papers. (Balane.)

Exception: If there is an existing copy or duplicate photostatic xerox.

Rodelas v. Aranza.-- In the case, the proponent of the will sought to present a copy of the

holographic will to the court. The court allowed the production of the copy. The basis of this

acceptance is the footnote no. 8 in the case of Gan v. Yan where the court said that "perhaps if a photostatic copy is presented..."

The merit of the Rodelas case is doubtful.. Authenticity of the will is based on the

handwriting and the signature. Handwriting experts use as a bases the penlifts of the writer. In photocopies, penlifts are not discernible and so the experts are deprived of their basis in determining the authenticity of the will.

b. Lost holographic wills can not be probated even by the testimonies of the witnesses.

The reason is that the will itself is the only proof of its authenticity.

____________________________________________________________________

DIGESTED CASE: Marcela Rodelas v. Amparo Aranza

G.R. No. L-58509; December 7, 1982

Facts:

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Petitioner-appellant filed a petition with the CFI-Rizal for the probate of the holo will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla. The grounds of their opposition are as follows:

1. Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator.

2. The alleged copy of the will did not contain a disposition of property after death and was not intended to take effect.

3. The original must be presented and not the copy thereof.

4. The deceased did not leave any will.

The appellees also moved for the dismissal of the petition for the probate of the will. The appellees' motions were denied. They filed a Motion for recon. Motion for Recon was approved. Appellant's motion for recon was denied. Appellant appealed the case to the CA which certified the case to the SC on hte ground that the appeal does not involve questions of fact.

Issue:

Whether or not a holo will which was lost or cannot be found can be proved by means of a photostatic copy.

Ruling:

Yes. a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "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. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

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DIGESTED CASE 2: Rodelas v. Aranza 119 SCRA 16 | Nieves

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FACTS: Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. Aranza, et al. filed a MTD on the grounds of:

1. Rodelas was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

2. the copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will, it was merely an instruction as to the management and improvement of the schools and colleges founded by the decedent;

3. the hollographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect because lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills

4. the deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition. The CFI set aside its order and dismissed the petition for the probate of the will stating that “in the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.” And that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. The lapse of more than 14 years from the time of the execution of the will to the death of the decedent and the fact that the original of the will could not be located shows to that the decedent had discarded the alleged holographic will before his death. Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al. moved to forward the case to the SC as it involves a question of law not of fact.

ISSUE:

W/N a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.

HELD:

If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made by the probate court with the standard writings of the testator. The probate court would be able to determine the authenticity of the handwriting of the testator.

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "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. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court,"

___________________________________________________________

DIGESTED CASE 3: Rodelas vs. Aranza

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G.R. L- 58509 December 7, 1982

FACTS:

Appellant Rodelas filed for probate of holographic will of Ricardo Bonilla

which the lower court denied noting that the alleged holographic will was executed

for more than 14 years from the time the execution of will. In view of the lapse of 14

years, the fact that the original of the will cannot be located shows that the

decedent has discarded before his death his allegedly missing Holographic Will.

ISSUE:

Whether or not a holographic will which was lost or cannot be found can be proved by photostatic copy.

RULING:

if the holographic will has been lost, and no other copy is available, the will cannot probated because the best and only evidence is the hand writing of the testator. But if a photostatic copy of a holographic will may be allowed because comparison can be made with the standard writings of testator.

__________________________________________________

SUPPLEMENTAL NOTES:

In the Matter of the Petition to Approve the Will of Ricardo B. Bonilla, deceased;

Bodellar v. Aranza, et al. L-58509, Dec. 7, 1982

May a lost or destroyed holographic will be proved by means of a photostatic or xerox copy thereof? YES, because the authenticity of the handwriting of the deceased can be determined by the probate court.

___________________________________________

SUMMARY: RODELAS vs. ARANZA December 7, 1982

FACTS: The petition was opposed on the ground that the alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect.

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HELD: A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

_________________________________________________

DIGESTED CASE: EUGENIA RAMONAL CODOY vs. EVANGELINE R. CALUGAY

G.R. No. 123486 August 12, 1999

Facts:

On April 6, 1990, Evangeline Calugay and two other devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed a petition for probate of the will who died on January 16, 1990. On June 28, 1990, Eugenia Ramonal Codoy filed an opposition to the petition alleging that the holographic will was a forgery. Respondents presented six (6) witnesses and various documentary evidence. Herein petitioners filed a demurrer to evidence. The lower Court granted the Demurrer to Evidence. Respondents filed a notice of appeal and in support they reiterated the testimony of the following witnesses, namely:

1. Augusto Neri, Clerk of Court, where the probate of the holographic will was filed.

2. Generosa Senon, election registrar of Cagayan de Oro, was presented to produce the voter's affidavit of the decedent. However, the voters' affidavit was already destroyed.

3. Matilde Binanay, testified that the deceased was her aunt, and that she lived with her for eleven (11) years. During those years she acquired familiarity with her signature as she used to accompany her in collecting rentals from her tenants and the deceased always issued receipts. Moreover, she assisted in posting the records of the accounts, and carried personal letters of the deceased to her creditors.

4. Fiscal Rodolfo Waga testified that he handled all the pleadings and documents signed by the deceased in connection with the intestate proceedings of her late husband. He testified that the signature appearing in the holographic will was similar to that of the deceased but he can not be sure.

5. Mrs. Teresita Vedad, an employee of the DENR who testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased.

6. Evangeline Calugay testified that she had lived with the deceased since birth, and was in fact adopted by the latter. She testified that the signature appearing in the holographic will is true and genuine.

The Court of Appeals held that even if the genuineness of the holographic will were contested, Article 811 of the civil code in requiring the production of three witnesses is merely permissive. Thus, the Court of Appeals sustained the authenticity of the holographic will and allowed the will to probate.

Issue:

Whether or not the provisions of Article 811 of the Civil Code are permissive or mandatory.

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Held:

The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator. We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order.

In the case at bar, the goal is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. It will be noted that not all the witnesses were familiar with the handwriting of the testator. In the case of Augusto Neri, he merely identified the record of the Special Proceedings. Generosa E. Senon, did not even produce the voters' affidavit d as it was no longer available. The will was found not in the personal belongings of the deceased but with Ms. Binanay, she revealed that the will was in her possession as early as 1985. There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature. A visual examination of the holographic will convince us that the strokes are different; there were uneven strokes, retracing and erasures on the will. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting by the deceased. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin.

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SUPPLEMENTAL NOTES:

Is the three-witness rule directory or mandatory?

According to the obiter in Azaola vs. Singson (supra), the three-witness rule is directory. In the opinion of the Supreme Court in that case, the article could “not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator”. The Court recognized the potential impossibility of complying with such requirement if made mandatory. It opined that, judging by the second paragraph of the same article, “the law foresees the possibility that no qualified witness may be found and provides for resort to expert evidence to supply the deficiency”. Therefore, the focus of the Court in Azaola was on the duty on the court “to exhaust all available lines of inquiry” whatever number of witnesses is necessary to reach that goal and whether or not expert witnesses are required. What is decisive therefore is not the quantity of witnesses, but the quality of their testimony.

However, in Codoy vs. Calugay (312 SCRA 333 [1999]), it was ruled that the three-witness rule of Article 811 is mandatory based on the finding the word “shall” in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion.

Did the doctrine in Codoy reverse Azaola?

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There are two views.

The first view is that Codoy did reverse Azaola precisely because it is a later case that expressly states that the rule is mandatory when the previous case states that it is merely directory. Given the inconsistency, there can be no doubt that the Azaola has been reversed.

The second view is that Codoy actually affirmed Azaola rather than reversed it. In support of such a view are the following points:

(1) The Codoy ruling was not based on there being less than three witnesses

(2) Neither did the ruling state that since there were less than three witnesses, even if their

testimony was convincing, the probate must be denied because the mandatory import of

Article 811 (in fact, the testimony of these two witnesses was found to be indecisive)

(3) The ruling in fact said that visual examination of the will reveals that the strokes are

different compared with standard documents

(4) Therefore, the basis of the ruling was that evidence for authenticity was not adequate, not failure to present three witnesses. Which, if analyzed closely, is in accord with Azaola,

which stated that the decisive factor is not quantity, but quality.

Atty. Balane has made it clear that he subscribes to the second view.

Probate of Holographic Wills

If contested, at least three such identifying witnesses should be required. If none are available, experts may be called upon, otherwise the will of the testator may be

frustrated thru no fault of his own. Upon the other hand, even if ordinary witnesses are available, still if they are unconvincing, the court may still, and in fact should resort

to handwriting experts. The duty of the Court, in fi ne, is to exhaust all available lines of inquiry, for the state is very much interested in carrying into effect the true intention

of the testator. Because, however, the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from the party’s failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay

witnesses. (Azaola v. Singzon, L-4003, Aug. 5, 1960). On this point, Justice J.B.L. Reyes has remarked: “Why should the Court’s discretion in weighing the proof be limited by a quantitative minimum of proof?

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Three witnesses in case of contest recalls the obsolete Roman Rule — ‘testis unos, testis nullius.’ The modern tendency is to leave the weight of evidence to the Courts. After all, one witness can be very convincing, and a probate case is not a prosecution for treason.” (Lawyer’s Journal, Nov. 30, 1960, p. 557).

SUMMARY: Codoy v. Calugay 312 SCRA 333 (1999)

The goal to be achieved by Article 811 of the Civil Code is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefi t will employ means to

defeat the wishes of the testator. The possibility of a false document being adjudged as

the will of the testator cannot be eliminated, which is why if the holographic will is contested, the law requires three witnesses to declare that the will was in the handwriting

of the deceased.

Are the Provisions of Art. 811 Permissive or Mandatory?

Eugenia Ramonal Codoy and Manuel Ramonal v. Evangeline R. Calugay, et al.GR 123486, Aug. 12, 1999

FACTS:

In this petition, petitioners ask whether the provisions of Art. 811 are permissive or mandatory. The article provides as a requirement for the probate of a contested holographic will, that at least 3 witnesses explicitly declare that the signature in the will is the genuine signature of the testator. Art. 811 reads in part: “If the will is contested, at least 3 of such witnesses shall be required.’’

HELD:

We are convinced, based on the language used, that Art. 811 is mandatory. The word “shall’’ connotes a mandatory order. 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.

[NOTE: Thru a holographic as well as notarial wills, fi liation may be established. (Potenciano v. Reynoso, 401 SCRA

________________________________________

DIGESTED CASE: Codoy v. Calugay

312 SCRA 333 | JEN SUCCESSION REVIEWER

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FACTS:

On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed a petition for probate of the said will. They attested to the genuineness and due execution of the will on 30 August 1978. Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the will was a forgery and that the same is even illegible. They raised doubts as regards the repeated appearing on the will after every disposition, calling the same out of the ordinary. If the will was in the handwriting of the deceased, it was improperly procured. Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence. The first witness was the clerk of court of the probate court who produced and identified the records of the case bearing the signature of the deceased. The second witness was election registrar who was made to produce and identify the voter’s affidavit, but failed to as the same was already destroyed and no longer available. The third, the deceased’s niece, claimed that she had acquired familiarity with the deceased’s signature and handwriting as she used to accompany her in collecting rentals from her various tenants of commercial buildings and the deceased always issued receipts. The niece also testified that the deceased left a holographic will entirely written, dated and signed by said deceased. The fourth witness was a former lawyer for the deceased in the intestate proceedings of her late husband, who said that the signature on the will was similar to that of the deceased but that he can not be sure. The fifth was an employee of the DENR who testified that she was familiar with the signature of the deceased which appeared in the latter’s application for pasture permit. The fifth, respondent Evangeline Calugay, claimed that she had lived with the deceased since birth where she had become familiar with her signature and that the one appearing on the will was genuine. Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It was reversed on appeal with the Court of Appeals which granted the probate.

ISSUE:

1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly declare the signature in a contested will as the genuine signature of the testator, is mandatory or directory.

2. Whether or not the witnesses sufficiently establish the authenticity and due execution of the deceased’s holographic will.

HELD:

1. YES. The word “shall” connotes a mandatory order, 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.

In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. The paramount consideration in the present petition is to determine the true intent of the deceased.

2. NO. We cannot be certain that the holographic will was in the handwriting of the deceased.

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The clerk of court was not presented to declare explicitly that the signature appearing in the holographic will was that of the deceased. The election registrar was not able to produce the voter’s affidavit for verification as it was no longer available. The deceased’s niece saw pre-prepared receipts and letters of the deceased and did not declare that she saw the deceased sign a document or write a note. The will was not found in the personal belongings of the deceased but was in the possession of the said niece, who kept the fact about the will from the children of the deceased, putting in issue her motive. Evangeline Calugay never declared that she saw the decreased write a note or sign a document. The former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. (As it appears in the foregoing, the three-witness requirement was not complied with.) A visual examination of the holographic will convinces that the strokes are different when compared with other documents written by the testator.

The records are remanded to allow the oppositors to adduce evidence in support of their opposition.

The object of solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise the right to make a will. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, the law requires three witnesses to declare that the will was in the handwriting of the deceased. Article 811, paragraph 1. provides: “In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.” The word “shall” connotes a mandatory order, 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.

________________________________________

Art. 813 - Dating of dispositions in a holographic will

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

SUPPLEMENTAL NOTES:

What are the issues to be resolved in probate proceedings?

1. Whether the instrument submitted is, indeed, the decedent’s last will and testament; in other words, the question is one of identity;

2. Whether the said will was executed in accordance with the formalities required by law; in other words, the question is one of due execution;

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3. Whether the decedent had the necessary testamentary capacity at the time the will was

executed; in other words, the question is one of capacity;

4. Whether the execution of the will and its signing were the voluntary acts of the decedent. (Ajero vs. Ca, supra.)

What are the grounds for the disallowance of a will?

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

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

3. If the will was executed through force or duress, or under 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 some other person;

5. If the signature of the testator was procured through 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; and

7. If the will was expressly revoked (Article 839).

Note: The grounds are exclusive (Ajero vs.CA, GR No. 106720, September 15, 1994).

What are the issues to be resolved in the probate of a holographic will?

In a petition to admit a holographic will to probate, the only issues to be resolved are the following:

1. Whether the instrument submitted is, indeed the decedent’s last will and testament;

2. Whether said will was executed in accordance with the formalities prescribed by law;

3. whether the decedent had the necessary testamentary capacity at the time the will was executed; and

4. Whether the execution of the will and its signing were the voluntary acts of the decedent. (Ajero vs. CA)

___________________________________________

Ajero v. CA 55 SCAD 352 (1994)

Unless the unauthorized alterations, cancellations or insertions were made on the date of the

holographic will or on testator’s signature, their presence does not invalidate the will itself.

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In the case of holographic wills, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself. In a petition to admit a holographic will to probate, the only issues to be resolved are:

1. Whether the instrument submitted is, indeed, the decedent’s last will and testament;

2. Whether said will was executed in accordance with the formalities prescribed by law;

3. Whether the decedent had the necessary testamentary capacity at the time the will was

executed; and

4. Whether its signing was the voluntary act of the decedent.

Arts. 810 - 819

21. Ajero vs. CA

Requirements under Art 813 and 814 on the authentication of changes and signing and dating of dispositions refer only to the validity of the dispositions, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

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DIGESTED CASE: AJERO vs. CA September 15, 1994

FACTS:

The petition for probate of the will was opposed on the ground that it contained alterations and corrections which were not duly signed by decedent.

HELD:

Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. Unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes.

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DIGESTED CASE: Spouses Roberto and Thelma Ajero v. Court of Appeals and Clemente Sand G.R. No. 106720; September 15, 1994

Facts:

The decedent names as devisees Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa Sand, and Dr. Jose Ajero and their children.

The petitioners filed a petition for the allowance of decendent's holo will.

Private Respondnet opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decendent's handwriting; it contained alterations and corrections which were not duly signed by the decedent; and the will was procured by pets through improper pressure and undue influence. Dr. Jose Ajero also opposed the petition. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.

The trial court admitted the holo will to probate. On appeal, the said decision was reversed and the pet for probate was dismissed. The CA found that the holo will failed to meet the requirements for its validity. I held that the decedent did not comply with Arts 813 and 814.It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Ruling:

1. Refer to Art. 839.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament;

(2) whether said will was executed in accordance with the formalities prescribed by law;

(3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and,

(4) whether the execution of the will and its signing were the voluntary acts of the decedent.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814.

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DIGESTED CASE: Ajero v. CA 236 SCRA 488 | JEN SUCCESSION REVIEWER

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FACTS:

The holographic will of Annie San was submitted for probate. Private respondent opposed the petition on the grounds that: neither the testament’s body nor the signature therein was in decedent’s handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was also contested by Dr. Ajero with respect to the disposition in the will of a house and lot. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. However, the trial court still admitted the decedent’s holographic will to probate.

The trial court held that since it must decide only the question of the identity of the will, its due execution and the testamentary capacity of the testatrix, it finds no reason for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. On appeal, the CA reversed said Decision holding that the decedent did not comply with Articles 313 and 314 of the NCC. It found that certain dispositions in the will were either unsigned or undated, or signed by not dated. It also found that the erasures, alterations and cancellations made had not been authenticated by decedent.

ISSUE:

Whether the CA erred in holding that Articles 813 and 814 of the NCC were not complies with.

HELD:

YES. A reading of Article 813 shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate notwithstanding non-compliance with the provisions of Article 814. Unless the authenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator’s signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. It is also proper to note that he requirements of authentication of changes and signing and dating of dispositions appear in provisions (Article 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the NCC – and not those found in Articles 813 and 814 – are essential to the probate of a holographic will. Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the grounds for disallowance of wills. These lists are exclusive; no other grounds can serve to disallow a will. In a petition to admit a holographic will, the only issues to be resolved are:

1. whether the instrument submitted is, indeed, the decedent’s last will and testament;

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2. whether said will was executed in accordance with the formalities prescribed by law;

3. whether the decedent had the necessary testamentary capacity at the time the will was executed; and

4. whether the execution of the will and its signing were the voluntary acts of the decedent.

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud; accordingly, laws on this subject should be interpreted to attain these primordial ends. In the case of holographic wills, what assures authenticity is the requirement that they be totally authographic or handwritten by the testator himself. Failure to strictly observe other formalities will no result in the disallowance of a holographic will that is unquestionable handwritten by the testator.

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DIGESTED CASE:Ajero vs. CA & Cemente Sand

G.R. No. 106720 September 15, 1994

Puno, J.:

FACTS:

Petitioner submitted for probate the holographic will of the late Annie Sand who died on November 25,1982. Private respondent opposed the probate because the purported will was not Annie’s hand writing; it contained alterations and corrections ,which were not duly signed by decedent and it was procured by petitioners through pressure and undue influence. The lower court allowed the will for probate as 3 witnesses were presented who testified on the authenticity and that the latter is of sound mind.

ISSUE:

Whether or not the holographic will executed by Annie Sand executed in the formalities prescribed by law.

RULING:

What assures authenticity of holographic will is the requirement that they totally autographic or hand-written by the testator himself, as provided in Art – 810 NCC:

A person may execute a holographic will which must be entirely written, dated and signed by the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed. Failure to strictly observe other formalities will not result in the disallowance of holographic will that is unquestionably hand written by the testator. A holographic will may still be admitted for probate not withstanding non-compliance with the provisions of 814 NCC.

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

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DIGESTED CASE 1: Kalaw v. Relova 132 SCRA 237 | Posadas

FACTS:

On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his deceased sister, Natividad Kalaw, filed a petition for the probate of her holographic Will executed on December 24, 1968. The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix as her sole heir. She opposed probate alleging that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature. ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder. Trial Court denied petition to probate the holographic will. Reconsideration denied.

ISSUE:

W/N the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with Rosa as sole heir.

HELD:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, The ruling in Velasco, supra, 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. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude.

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DIGESTED CASE 2: KALAW vs. RELOVA January 15, 1990

FACTS: The probate of the will was opposed on the ground that it contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code.

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HELD: Ordinarily, 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, corrected 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. That change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature.

DIGESTED CASE 3: Kalaw vs. Relova

GR No. L-40207 Sept.28 1984

Melencio-Herrera J:

Facts:

Private Respondent Gregorio K. Kalaw filed a petition for the probate of the

holographic will executed by Natividad K. Kalaw on December 24, 1968. Said will

named Rosa K. Kalaw to be her sole heir but changed it to that of Gregorio’s absent

the full signature of the decedent over such alterations as provided for the Art. 814

of the NCC. Rosa apposed the probate of the will of which originally instituted her as

the sole heir.

Issue:

Whether or not the original unaltered text after subsequent alternations and

insertions were voided by the trial court for lack of authentication by the full

signature of the testatrix, should be probated or not, with her as sole heir.

Ruling:

The court ruled negatively, saying: “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 entire will is voided that

nothing remains in the will after that which could remain valid. To state that the will

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as first written should be given efficacy is to disregard the seeming change of mind

of the testatrix be given effect because she failed to authenticate it in the manner

required by law by affixing her full signature.

DIGESTED CASE 4: Rosa K. Kalaw, petitioner, vs. Hon. Judge Benjamin RELOVA and Gregorio K. KALAW, respondents. G.R. No. L-40207, September 28, 1984.

FACTS:

Natividad K. Kalaw made a holographic will executed on December 24, 1968. Originally, the will named Rosa K. Kalaw, sister of Natividad, as the sole heir. However, Natividad eventually changed the name on the will by crossing out Rosa’s name and replacing it with Gregorio K. Kalaw as sole heir instead. Natividad failed to properly authenticate such alteration with her full signature. Because of this, the parties decided to submit the holographic will for an examination by the National Bureau of Investigation. The Bureau’s findings confirmed that the original writings and those of the alterations were written by the same person. Rosa argued that the probate should be denied since the alteration on the will is invalid for failing to comply with Art. 814 which states that ―In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature‖. Further, Rosa asserted that the will should be probated on its original content before the alteration was made. Gregorio contends that the mere fact that Rosa agreed to submit the will for examination estoppes her from questioning the validity of the alteration and invoking Art. 814 of the Civil Code. Judge Benjamin Relova denied the probate on the will. Rosa now sought for the probate on the will as to its original unaltered text.

ISSUE: May the will, in case of alterations, corrections, or cancellations, without the proper authentication, be submitted for probate as to the original content prior to such alteration, correction, or cancellation.

RULING: No, this cannot be done. Ordinarily, 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, corrected 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 law by affixing her full signature. As it is, with

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SUPPLEMENTAL NOTES:

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What is the effect of non-authentication with the testator’s full signature?

The change is simply considered not made. The will is not thereby invalidated as a whole, but at most only as regards the particular words erased, corrected or inserted (Velasco vs. Lopez, 1 Phil 720 [1903]), unless the portion involved is an essential part of the will, such as the date. (Kalaw vs. Relova, 132 SCRA 237 [1984])

In the case of Kalaw, the insertion of a holographic will was not properly done and hence, the

alteration was deemed not valid. However, in this case, not only was the insertion invalidated, the entire will was rendered void. According to the case, “… 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.” Kalaw then added that “To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix.”

Is there anything questionable about the ruling in Kalaw vs. Relova (supra)?

Yes. For although the holding that the insertion of the name of Gregorio cannot be given effect for not having been done in accordance with the requirement of Article 814, the voiding of the entire will is questionable. The original must have taken effect notwithstanding the fact that the testator wanted to change her mind about it because the insertion, to take effect, must have been manifested in a manner required by law. Hence, the intent as stated in the will must have prevailed.

Kalaw vs. Relova:

Ordinarily, 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, corrected or interlined. Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810).

2. The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its

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entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs.

___________________________________________

Full signature does not mean testator’s full name, only his usual and customary signature.

Effect of non-compliance – the change [insertion, cancellation, etc.] is simply considered NOT MADE. The will is not thereby invalidated as a whole, but at most only as regards the particular words erased, corrected or inserted UNLESS the portion involved is an essential part of the will, such as the date.

CASE

Kalaw v. Relova

- Natividad Kalaw left a holographic will. It is not contested that the will was in her handwriting as certified by the NBI. The will however has alterations/insertions. The will

originally named Rosa, the decedent’s sister as her sole heir and administrator, but this was crossed out and changed to her brother Gregorio. Such alteration was however not authenticated by the full signature of the decedent.

- Hence, the will was denied probate by the trial court Whether the will is valid or not.

- It is invalid. Ordinarily, when a number of erasures, corrections and interlineations made by the testator in a holographic sill have not been noted under his signature, the will in not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interline.

- However, in this case, the will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not have

the signature of the testator, the effect must be that the entire will is voided for the reason that nothing remains in the will after that which could remain valid.

- To state that the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because

she failed to authenticate it in the manner required by law by affixing her full signature.

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- When a number of unauthenticated erasures, corrections and interlineations are made by the testator in a holographic will, the same is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.

Except however, if after all the alterations were voided, nothing remains in the will.

Comments – The holding that the insertion of the name of Gregorio cannot be given effect for not having been done in accordance with the requirement of Art814 is beyond question. Why, however, was the cancellation of the original testamentary institution given effect? That cancellation was not done in the way mandated by the article.

To say, as the decision does, that “to state that the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix,” is no argument, because it is not enough that the testator manifest his intent – he must manifest in a

manner required by law.

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Roberto and Thelma Ajero vs. Court of Appeals, G.R. No. 106720, September 15, 1994 (refer the case above)

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Art. 816-Will of an alien

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

DIGESTED CASE: Vda de Perez vs. Tolete

G.R. No. 76714 June 2, 1994

Quiason, J.:

FACTS:

Dr. Jose Cunanam and wife Evelyn Perez-Cunanam, both American citizens, executed will separately but containing almost the same provisions. The doctor’s will and testament bequeathed to his wife all the remainder of his real and personal properties at the time of his death. His likewise states that should both of them die, it shall be presumed that he predeceased his wife, and all estate shall be administered and distributed in accordance with such presumption. Evelyn’s will and testament contained her acknowledgement that in case both died, it shall be presumed she pre-deceased her husband. On January 9, 1982, the entire Cunanam family perished when their house was burned down. Salud, mother of Evelyn filed a petition for the probate of a wills, that were likewise admitted for probate in the US

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court. On June 23, Court granted probate but Cunanam heirs opposed and petitioned the court to nullify proceedings, disqualify petitioner as administratix. Judge recalled the appointment of petitioner as administratix and disallowed the probate of the 2 wills.

ISSUE:

Whether or not the 2 wills may be probated at the 2 wills may be probated at the same time in a court.

HELD:

Since the wills of the Cunanam spouse were admitted for probate, as American citizens, NCC provision was satisfied: Art. 816. The will of an alien who is abroad produce effect in the Philippines if made with the formalities by the law of the place in which he resides, or

according in his country, or in conformity with those which this Code prescribes. What the law prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a third person. The Cunanam spouses executed separate will. Since the wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate… we will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation.

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Art. 817

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

DIGESTED CASE: IN RE: ESTATE OF JOHNSON November 16, 1918

FACTS:

After 3 months from the time the will was allowed probate, the decedent‘s daughter from the first marriage, claiming to be the sole legitimate heir, noted an exception to the order admitting the will to probate. No petition was filed but her attorneys merely entered an appearance on her behalf. 7 months after the probate order was issued, the same attorneys moved the court to vacate the order admitting the will to probate.

HELD:

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The application to set aside must be denied because it was filed out of time. Under the Code of Civil Procedure, the application for relief must be made within a reasonable time, but in no case exceeding 6 months after such judgment, order or other proceeding was taken. Such judgment, order or other proceedings extends to all sorts of judicial proceedings like probate proceedings. Although the time allowed for the making of such application was inconveniently short, the remedy existed and the possibility of its use is proved in this case by the circumstance that on June 12, 1916, she in fact appeared in court by her attorneys and excepted to the order admitting the will to probate.

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SUPPLEMENTAL NOTES:

(3) In Re Estate of Johnson, 39 Phil. 156

A will executed in Manila by a citizen of Illinois living in Manila, and which follows the requirements in Illinois, can be admitted to probate in the Philippines.

PERIODS — the petition has to be fi led:

1) within sixty (60) days after the petitioner learns of the judgment or order to be set aside;

2) and within six (6) months after such order or judgment was entered. (In Re Estate of Johnson, 39 Phil. 156; Rivera v. Palmaroli, 40 Phil. 105). Should the period lapse, the judgment now really becomes FINALLY FINAL.

Idem; Where testator is an alien. —

If the testator is an alien and he executes a will in the Philippines, the laws which

govern the formal validity of the will shall be either; (1) the law of the Philippines in accordance with the general rule established in Art. 17, or (2) the law of the country of which he is a citizen or subject in accordance with the special rule established in Art. 817.

In the latter case, it is a prerequisite that the will which is presented for probate could have been proved and allowed by the law of his own country.91 If he executes a will outside of the Philippines, the laws which govern shall be either: (1) the law of the place where the will is executed in accordance with the general rule established in Art. 17, or (2) the law of the place in which he resides in accordance with the special rule established in Art. 816, or (3) the law of his country in accordance with the special rule established in Art. 816, or (4) the law of the Philippines again in accordance with the special rule established in Art. 816.

Problem — X, a Spanish citizen but a resident in San Francisco, California, U.S.A., executed a will in Tokyo, Japan. May such will be probated in the Philippines and his estate in this country distributed in conformity with the provisions of the will? Explain your answer. (1973 Bar Problem)

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Answer — Yes, the will of X may be probated in the Philippines and his estate in this country may be distributed in conformity with the provisions of the will, provided that said will was executed in accordance with the formalities prescribed by any of the following laws:

(1) The law of the place where X resides (San Francisco, California); or

(2) The law of his own country (Spain); or

(3) The Civil Code of the Philippines; or

(4) The law of the place where the will was made (Tokyo, Japan). (Arts. 17, par. 1, 816, Civil Code). The first three are stated in Art. 816, while the last is stated in the fi rst paragraph of Art. 17 of the Civil Code.

(e) The following points, among others, should NOT be included in the probate order, since they affect intrinsic validity:

1) exclusion of the widow from the inheritance. (Sahagun v. Gorostiza, 7 Phil. 347).

2) disinheritance of a daughter. (Limjuco v. Canara, 11Phil. 394).

3) impairment of the legitime. (In Re Estate of Johnson, 39 Phil. 156).

4) declaring a certain woman to be the true wife of the testator. (Alkuino Lim Pang v. Uy Pian Ng Shun, 52 Phil. 571).

5) partitioning of conjugal properties. (Reynoso v. Tolentino, O.G. Supp. Aug. 2, 1951, p. 5).

6) right of a widow to the inheritance. (Barredo v. Vencer, 56 Phil 806).

7) titles to property, and annulment of alleged fraudulent sales. (According to the court, one reason for avoiding this in summary proceedings particularly is to minimize expenses, so much that even the appointment of an administrator in summary proceedings is dispensed with). (Padilla v. Matela, L-7479, Oct. 24, 1955).

Idem; When allowance may be set aside. —

Since a proceeding for the probate of a will is essentially one in rem, a judgment

allowing a will shall be conclusive as to its due execution. Consequently, no question of the validity or invalidity of the will could be thereafter raised, except (1) by means of an appeal, or (2) by means of a petition for relief from the judgment by reason of fraud, accident,

mistake, or excusable negligence, or (3) by means of a petition to set aside the judgment by reason of lack of jurisdiction or lack of procedural due process, or (4) by means of an action to annul and judgment by reason of extrinsic or collateral fraud. The first exception is recognized by the provision of the fourth paragraph of Art. 838, as well as by the provision of Sec. 1, Rule 75, Rules of Court, while the second exception is recognized by the general provisions of Secs. 2 and 3, Rule 38, Rules of Court. These provisions recognizing the second are:

“Sec. 2. Petition for relief from judgment, order, or other proceedings. — When a judgment or fi nal order is entered, or any other proceeding is thereafter taken against a party in any

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court through fraud, accident, mistake, or excusable negli gence, he may fi le a petition in such court and in the same cause praying that the judgment, order, or proceeding be set aside.

“Sec. 3. Time for filing petition; contents and verifi cation.

— A petition provided for in either of the preceding sections of this Rule must be verifi ed, fi led within sixty (60) days after the petitioner learns of the judgment, fi nal order, or other proceedings to be set aside, and not more than six (6) months after such judgment or fi nal order was entered, or such proceeding was taken; and must be accompanied with affi davits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.” Thus, in In re Estate of Johnson,15 the Supreme Court, speaking through Justice Street, declared:

“The laws of these Islands, in contrast with the laws in force in perhaps all of the States of the American Union, contain no special provision, other than that allowing an appeal in the probate proceedings, under which relief of any sort can be obtained from an order of a court of fi rst instance improperly allowing or disallowing a will. We do, however, have a provision

of a general nature authorizing a court under certain circumstances to set aside any judgment, order, or other proceedings whatever. This provision is found in Section 113 of the Code of Civil Procedure (now Secs. 2 and 3, Rule 38, Rules of Court).

“The use of the words’ judgment, order or other proceeding’ in this section indicates an intention on the part of the Legislature to give a wide latitude to the remedy here provided, and in our opinion its operation is not to be restricted to judgments or orders entered in ordinary contentious litigation where a plaintiff impleads a defendant and brings him into court by personal service of process. In other words, the utility of the provision is

not limited to actions proper but extends to all sorts of judicial proceedings.

“In the second section of the Code of Civil Procedure it is declared that the provisions of this Code shall be liberally construed to promote its objects and to assist the parties in obtaining

speedy justice. We think that the intention thus exhibited should be applied in the interpretation of Section 113 (now Secs. 2 and 3, Rule 38, Rules of Court); and we hold that the word ‘party’ used in this section, means any person having an interest

in the subject matter of the proceeding who is in a position to beconcluded by the judgment, order or other proceeding taken.”

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

In re: Will of Bilbao, 87 Phil 114

SUPPLEMENTAL NOTES:

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Idem; Joint wills. —

According to Art. 818 of the Code, “two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefi t or for the benefi t of a third person.”

A “joint” will is defi ned as a single testamentary instrument which contains the wills of two or more persons, jointly executed by them, either for their reciprocal benefi t or for the benefi t of a third person.92 It must not be confused with “mutual” or with “reciprocal”

wills. “Mutual” wills are wills executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other.93 “Reciprocal” wills are wills in which the testators name each other as benefi ciaries

under similar testamentary plans.94 It is clear from these defi nitions that a joint will may be either mutual or reciprocal, although it is not necessarily so, just as mutual or reciprocal wills may be joint if they are contained in a single testamentary instrument. In practice, husband and wife ordinarily make mutual or reciprocal wills contained in separate instruments. Such a practice is not prohibited by the provisions of Art. 818. What is prohibited is the execution of a joint will or a will contained in the same instrument, either for their reciprocal benefi t or for the benefi t of a third person.The reason for the prohibition, 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 benefi t or for that of third persons whom he or she desires to favor. And, where the will not only joint but reciprocal either one of the spouses 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.”95

In its report, the Code Commission gives the following background and purpose of the provision:

“The Spanish Civil Code expressly prohibits the execution of joint and mutual wills in its article 669. This article has an interesting background. The Fuero Real (Ley 9, Tit. 6, Libro 3)

allowed this kind of will between husband and wife if they had no children. The Partidas (Ley 335, Tit. 11, Partida 5) prohibited the same because it might lead to the commis sion of parricide.

In spite of this express prohibition, such kind of will was executed, hence, the enactment of article 669 of the Civil Code (Spanish Civil Code) which embodies not only the provisions of

the Partidas but also makes the prohibition more extensive. “In the Philippines, a similar kind of will has sometimes been used as a basis for the distribution of the estate, as in the

case of Macrohon vs. Saavedra, 51 Phil. 267 (1927). To eliminate all doubts, once and for all, and to establish a defi nite policy, Article 818 of this Code is inserted expressly prohibiting the execution of joint and mutual wills.”

Under Art. 819 of the Code joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. It is evident that this rule is an exception to the rule stated in Art. 815. It is, however, in conformity with the provision of the third paragraph of Art. 17 of the Civil Code which states: “Prohibitive laws concerning persons, their acts or property, and those which have for their objects public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions

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agreed upon in a foreign country.”

It must be noted that the provision of Art. 819 is appli cable only to joint wills executed by Filipinos in a foreign country; it does not apply to joint wills executed by aliens.

Problem — A and B, a married couple of French citizenship but residents of the Philippines, went to Argentina and there executed a joint will, mutually instituting each other as sole heir, which will is valid according to the law of the state. Subsequently, they returned to the Philippines where A died. May the joint and mutual will executed in Argentina be probated

as valid in the Philippines? Reasons. (1971 Bar Problem)

Answer — The joint and mutual will executed in Argentina by A and B may be probated as valid in the Philippines.

True, Art. 818 of the Civil Code of the Philippines prohibits two

or more persons from making a will jointly, or in the same instrument,

either for their reciprocal benefi t or for the benefi t

of a third person, and Art. 819 of the same Code extends this

prohibition to joint wills executed by Filipinos in a foreign country,

even though authorized by the laws of the country where

they may have been executed. But then, from the phraseology of

Art. 819 itself, there is a clear implication that the prohibition does not apply to foreigners, and certainly, A and B are foreigners. Therefore, the provision of the third paragraph of Art. 17 of the Civil Code which declares that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated or by determinations or conventions agreed upon in a foreign country, cannot be applied in the instant case. What is applicable is the first paragraph of the same article, which declares that forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

Law Which Governs Intrinsic Validity of Wills. — The intrinsic validity of wills is governed by the national law of the person whose succession is under consideration. This is the precept or principle which is enshrined in the second paragraph of Art. 16 of the Civil Code. According to this provision, “intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

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(3) Reasons Why Joint Wills are VOID

(a) To allow as much as possible SECRECY, a will being a purely personal act.

(b) To prevent undue infl uence by the more aggressive testator on the other. (Dacanay v. Florendo, et al., 48 O.G. 81.).

(c) In case of death of the testators at different times, probate would be harder.

(d) It militates against the right of a testator to revoke his will at any time.

(Example: One testator would be prevented from revoking by an overt act, like tearing or burning, for the other may not agree.)

(e) In case of a husband and wife, one may be tempted to kill the other. (In re Will of Bilbao, 47 O.G. [Sup. 12] 331, L- 3200, Aug. 2, 1960).

(4) Query: A joint will (executed by a husband and his wife) was erroneously probated by the RTC. There being no appeal, the judgment became final. Can the joint will be given effect?

Answer: Yes, for while joint wills are prohibited and should have been disallowed, still in this case, the judgment had already become fi nal. This is NOT a case of lack of jurisdiction:

it is simply an instance of an erroneous but valid judgment. Otherwise stated, this is merely an error in law, not an error in jurisdiction. (See Bernabe de la Cerna v. Manuela

Rebaca Potot and Court of Appeals, 12 SCRA 576, L-20234, Dec. 23, 1964).

[NOTE: The principle just given is applicable if both testators of the joint will were already dead at the time the probate was made. If only one was dead, and the other was still alive,

the fi nal judgment can have reference only to the estate of said deceased testator. Later, when the second testator dies, and the joint will is once again presented, the same ought to

be regarded as intestate. (Ibid.).].

[NOTE: The same principle applies in similar cases, as when, a notarial will with only two (2) credible witnesses is erroneously allowed by fi nal judgment.].

(5) Wills that are NOT Joint Wills

(a) Those made on a single sheet of paper, the fi rst on the front, and the second on the re reverse side. (Reason: There are really two wills here.) (b) Those made even on the same page with or without a dividing line between them, but neither combining the signature of BOTH together. (Reason: Here again there are really two instruments or two wills, which are INDEPENDENT of each other.)

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[NOTE: Reciprocal wills between a husband and wife, as long as not made jointly, are valid. (Araniera v. Rodriguez, et al., 46 O.G. 584). This is true even if the same witnesses are used. (57 Am. Jur. Wills, Sec. 682).].

(6) Rules in Other Countries

Among the countries that prohibit the execution of joint wills are Argentina, Brazil, Lower Canada, France, and Mexico. In Germany, however, joint will may be made, but only by a

married couple. (Comment of Code Commission, Com. Report, p. 106).

_____________________________________________

Dacanay vs. Florendo, 87 Phil 114 --- can’t find =(

SUPPLEMENTAL NOTES:

What is a joint will?

It is one document which constitutes the wills of two or more individuals. Note that the operative term is “document”, and so, the two or more wills may be written on one sheet of paper and this would not constitute a joint will. Note: The fact that a will is joint is a matter of form.

Are joint wills allowed in our jurisdiction?

No. Joint wills are void.

What are the reasons for the prohibition against joint wills?

1. The limitation on the modes of revocation

2. The diminution of testamentary secrecy

3. The danger of undue influence (Dacanay vs. Florendo, 87 Phil 324 [1950])

4. The danger of one testator killing the other (Ibid)

Are joint wills absolutely prohibited anywhere in the world?

No. In Germany, under Article 2265 of the BGB, a joint will may be made between spouses.

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Art. 827

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ARTICLE 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n)

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DIGESTED CASE: UNSON vs. ABELLA December 29, 1924

FACTS:

The petition for probate of the will of Dona Josefa was opposed on the ground that the supposed will of the deceased was not executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other. It was also contested that the inventory attached thereto is invalid as it has no attestation clause in it.

HELD:

The will is valid. In view of the fact that the inventory is referred to in the will as an integral part of it, the attestation clause is in compliance with law, which requires this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end of the inventory. In the case of Aldaba vs. Roque, the validity of the will was upheld though it was paged with the letters A, B, C, etc. instead of with the numbers ―one‖, ―two‖, ―three‖, etc. Since the principal object is to give the correlation of the pages, this object may be attained by writing “I, II, III, etc”, as in this case.

________________________

DIGESTED CASE 2: Uson v. Del Rosario

FACTS:

Law in force at time of decedent’s death determines who the heirs should be.

- Maria Unson was the legal wife of Faustino Nebrada. Faustino died in 1945 leaving 5 parcels of land with no other heir except his legal wife. However, it was the common-life, Maria del Rosario who took possession of the lands, depriving Unson the enjoyment and possession of the same.

- Thus, the legal wife filed a case for recovery of ownership and possession of the said parcels of land against del Rosario.

- Maria de Rosario contended that Unson and Faustino agreed to separate some time in 1931. Unson was given a parcel of land as alimony on the condition that the latter will

renounce her right to inherit any property that may be left by the husband upon his death.

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ISSUE:

- Whether or not Unson is entitled to recover the parcels of land in question.

HELD:

- The SC held for Maria Unson.

- The Civil Code provides that the inheritance of a person is transmitted to another at the moment of his death.

- Accordingly, the Supreme Court said that the parcels of land of Faustino passed from the moment of his death to his only heir, Maria Unson.

- The contention that Unson and Faustino agreed that the former would NOT inherit anything from the latter cannot be made effectual. Future inheritance cannot be validly made the subject of any contract nor can it be renounced.

- Del Rosario also argued that her illegitimate children with Faustino have the right to inherit by virtue of the provision of the new Civil Code granting successional rights to

illegitimate children.

- Said argument is untenable. It is true that the new Civil Code grants successional rights to illegitimate children and that this right shall be given retroactive effect even though

the event which gave rise to said right may have occurred under the former legislation. (Faustino died in 1945, The NCC took effect in 1950).

- However, according to the NCC, this new right must not prejudice or impair any vested or acquired right.

- In this case, and as already explained, the right over the parcels of land vested upon Unson from the moment of death of Faustino. Thus, the new right cannot be enforced w/out prejudice to Unson’s vested right over the properties.

- Rights over the inheritance of a person are transmitted upon his death to another.

- ‘The property belongs to the heirs at the moment of death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death.”

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DIGESTED CASE 3: Unson v. Abella, et. al.

FACTS

Pedro Unson, executor of Dona Josefa Zalamea’s last will, filed a petition for the probate of the will of the latter. Attached on the said will is an inventory of all the properties of Dona Josefa.

Opposition was made thereto by Antonio, Ignacia and Avivencia Abella and Santiago Vito on the ff. grounds:

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-will is not paged correlatively in letters rather it is in Arabic numerals

- There is no attestation clause in the inventory attached to the will

-Will was not signed by the testatrix and the witnesses in the presence of each other.

Note: only the two witnesses namely Gonzalo Avaya and Eugenio Zalamea testified as to the authenticity of the will. The third witness, Pedro de Jesus, was not presented because he was hostile with Unson and has been meeting with the oppositors since the filing of the petition for the probate of the will of Josefa.

ISSUE: WON the will is valid?

HELD: YES!

As to the paging of the will, the SC cited the case of Aldaba v. Roque. Thus:

It was held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the signatures.

The inventory is referred to in the will as an “integral part” of it so the inventory need not have an additional attestation clause at the end.

The actuation of the proponents in NOT bringing to court Pedro de Jesus does not render the will invalid. As announced in Cabang vs. Delfinado, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced.

Exceptions:

when a witness is dead, or

cannot be served with process of the court, or

his reputation for truth has been questioned or

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He appears hostile to the cause of the proponent.

In the aforementioned cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed.

But supposing that de Jesus, when cited, had testified adversely to the application, this would not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law.

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SUMMARY: UNSON V. ABELLA

Facts:

The will contained an inventory of the testatrix’s properties. When the will was filed for probate, it was opposed as the inventory has no attestation clause in it and its paging is

made in Arabic numerals, not in letters. In the third paragraph of the will, reference is made to the inventory and at the bottom of the will it is stated that the testatrix signed the inventory attached to will in the presence of witnesses. The attestation clause mentions only the inventory of properties.

Ruling:

In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing attestation clause is in compliance with law regarding the doctrine of

incorporation by reference. There may be no incorporation by reference in a holographic will

unless such instrument is entirely in the handwriting of the

testator. Only in ordinary wills can there be incorporation by reference since it requires that each and every page of the document be signed by the testator and witnesses.

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SUPPLEMENTAL NOTES:

(1) Incorporation by Reference

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(a) The purpose of the Article is to provide for those cases when a testator wishes to incorporate to his will only by reference (i.e., without copying the whole thing) certain

documents or papers, especially inventories and books of accounts. (Report of the Code Commission, p. 108). Thereby, the testator is able to save time and energy.

(b) Said documents or inventories, when referred to in a notarial will, do not need any attestation clause, because the attestation clause of the will itself is suffi cient. (Unson v. Abella, 43 Phil. 494).

In the signing of documents or papers (when not voluminous), there is no need to make an attestation clause. The attestation clause on the will is enough.

(Unson vs. Abella, 43 Phil. 494)

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Art. 830

ARTICLE 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

Samson vs. Naval, 41 Phil 638

SUPPLEMENTAL NOTES:

Idem; Id. — Effect if will is disallowed. —

If a subsequent will, containing a clause revoking a previous will, is disallowed by the probate court on the ground that it has not been executed in accordance with the formalities prescribed by law, the revocatory clause will not produce any effect whatsoever.20 This is logical, , after all, the effect of the disallowance is to nullify the will altogether, including the revocatory clause contained in such will.

(4) Revocation by the Execution of Another Will or Codicil

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(a) Revocation in this manner may be express or implied. (Implied revocations consists in complete inconsistency between the two wills.).

(b) A will may be revoked by a subsequent will or codicil, either notarial or holographic.

(c) It is essential however, that the revoking will be itself a valid will (validly executed as to form), otherwise there is no revocation. (Samson v. Naval, 41 Phil. 838; Molo v. Molo, L-2538, Sep. 21, 1951).

(d) The revocation made in the subsequent will must indeed be a defi nite one. A mere declaration that sometime in the future, the fi rst would be revoked, is not enough. However, there is nothing wrong in making the revocation conditional, that is, the revocation takes place only if the condition is fulfi lled (doctrine of “conditional revocation,” also called “dependent relative revocation”). (See Bradish v. McClellan, 100 Pa. St. 607; see also Molo v. Molo, L-

2538, Sep. 21, 1951).

(e) Problem:

Testator made will No. (1). After one week, he wanted to revoke same, so he executed will No. (2), expressly revoking will No. (1). In the belief that he had already accomplished what he wanted, he then tore into two pieces will No. (1). On his death, it was discovered that will No.

(2) had not been validly executed.

Question: Can we consider will No. (1) as having been revoked, or should it still be given effect?

ANS.: In one case, if was held that while it is true that revocation was not produced by the execution of an invalid will, revocation was made thru an overt act — the act of tearing or destruction — with animo revocandi. Hence, the court concluded that will No. (1) had indeed been revoked. (Diaz v. De Leon, 43 Phil. 413). However, in a subsequent case, it was ruled that there was no revocation either by subsequent will (for same was invalid) or an overt act (since the act of destruction or tearing the fi rst will was prompted by the false belief that the second will had been validly executed). (See Art. 833, which provides that a revocation

of a will based on a false cause or illegal cause is null and void). To put it in another way, the doctrine of dependent relative revocation — the revocation by destruction or overt act was good only if this condition is fulfi lled, namely, that the revoking will was valid. The condition was not fulfi lled; therefore, the revocation by overt act did not really materialize.

(De Molo v. Molo, et al., L-2538, Sep. 21, 1951, citing 68 CJ 799, Gardner, pp. 232-233; 1 Alexander, p. 751).

(f) A second will referred to by the testator as his “last will” revokes completely the fi rst will, particularly if the provision of the two, as to who were being instituted as heirs, are inconsistent. (Bustamante v. Arevalo, 73 Phil. 635).

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Molo vs. Molo, 90 Phil. 37 ( fulltext no longer available)

SUPPLEMENTAL NOTES:

Molo vs. Molo

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

Doctrine of Dependent Relative Revocation. It is the intention of the testator that the revocation of previous will is dependent upon the validity of a subsequent will. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. The operation of the doctrine depends upon the intention of the testator at the time of the revocation of the first will.

What is the effect of the invalidity of the subsequent will on the revocation made on the prior will?

As a general rule, the efficacy of the revocatory clause does not depend on the testamentary dispositions of the revoking will. Revocation is generally an absolute provision, independent of the acceptance or capacity of the new heirs. The exception is when the testator provides in the subsequent will that the revocation of the prior one is dependent on the capacity or acceptance of the heirs, devisees or legatees instituted in the subsequent will – an example of “dependent relative revocation”. In Molo vs. Molo (90 Phil 37 [1951]), it was ruled that “where the act of destruction is connected with the making of another will so fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force”. Molo calls this the doctrine of dependent relative revocation, where it must appear that the revocation is dependent upon the valid execution of a new will.

Is the rule of dependent relative revocation applicable if the revocation of the prior will is by physical destruction?

In a Molo obiter, the physical destruction of the will did not revoke the prior will, on the inference that the testator meant the revocation to depend on the validity of a new one.

However, it is arguable whether the prior will should be deemed to be valid despite its physical destruction. It is opined that perhaps the Supreme Court overstepped its bounds of inference. This is aside from the fact that the ruling as to this issue is merely obiter.

But in the case of Diaz vs. de Leon (43 Phil 413 [1922]), the prior will that was destroyed was held to be invalid due to the fact that it was physically destroyed with animo revocandi by a servant in the presence and under the express direction of

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the testator. Clearly, despite the invalidity of the second will supposedly invalidating the revocatory clause as well, the prior will cannot be given effect because it was physically revoked.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION (ART 832)

A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator ―revokes‖ a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will.

Where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force (Vda. De Molo vs. Molo 90 Phil 37).

Conditional or Dependent Relative Revocation. —

There is also another presumption connected with revocation of wills which is recognized in this jurisdiction. This presumption is what is known as “the doctrine of dependent relative revocation.” Under this doctrine, the established rule is that if a testator revokes a will with a present intention of making a new one immediately and as a substitute, and the new will is not made, or, if made, fails of effect for any reason, it will be presumed that the testator preferred the old will to intestacy, and the old one will be admitted to probate in

the absence of evidence overcoming the presumption, provided its contents can be ascertained.

The doctrine of dependent relative revocation is a rule of presumed intention rather than a substantive rule of law. The presumption recognized by the doctrine is not artifi cial. Neither is it conclusive; it does not prevail as against actual evidence of the testator’s intention. Being merely a rule of presumed intention, the doctrine of dependent relative revocation cannot be carried so far as to defeat the real intention of the testator in a case where the facts in evidence do not support the presumption.43

SUMMARY: Vda. de Molo vs. Molo

90 Phil. 37

This is an appeal from an order of the lower court admitting to probate the last will and testament of Mariano Molo. The proponent of the will is the widow of the testator, while the

oppositors are nephews and nieces of the testator. The records show that after the death of Mariano Molo, his widow fi led a petition seeking the probate of a will executed by the deceased on June 20, 1939. This will was denied probate on the ground that it was not executed in accordance with the formalities prescribed by law. In view of the disallowance the widow fi led a second petition for the probate of a copy of another will executed

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by the deceased on August 17, 1918. This will was admitted to probate in spite of the opposition of the oppositors-appellants.

The widow is the instituted heiress in both wills. It must also be added that the will of 1939 contains a revocatory clause expressly revoking of will of 1918. The oppositors contend, among others, that the will of 1918 cannot be given effect because there is a presumption that the testator, after executing the will of 1939, and with full knowledge of the revocatory clause contained in said will, deliberately destroyed and revoked the original of the

will of 1918. The Supreme Court, however, speaking through Justice Bautista Angelo, held:

“Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked the fi rst, could there be any

doubt that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary consequence of the testator’s belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of ‘dependent relative revocation.’ Under this doctrine the rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the effi cacy of the new disposition intended to be

substituted, the revocation will be conditional and dependent upon the effi cacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force.’

(Gardner, pp. 232-233).”

Problem:

Testator made will No. (1). After one week, he wanted to revoke same, so he executed will No. (2), expressly revoking will No. (1). In the belief that he had already accomplished what he wanted, he then tore into two pieces will No. (1). On his death, it was discovered that will No. (2) had not been validly executed.

Question: Can we consider will No. (1) as having been revoked, or should it still be given effect?

ANS.: In one case, if was held that while it is true that revocation was not produced by the execution of an invalid will, revocation was made thru an overt act — the act of tearing or destruction — with animo revocandi. Hence, the court concluded that will No. (1) had indeed been revoked. (Diaz v. De Leon, 43 Phil. 413). However, in a subsequent case, it was ruled that there was no revocation either by subsequent will (for same was invalid) or an overt act (since the act of destruction or tearing the fi rst will was prompted by the false belief that the second will had been validly executed). (See Art. 833, which provides that a revocation

of a will based on a false cause or illegal cause is null and void). To put it in another way, the doctrine of dependent relative revocation — the revocation by destruction or overt act was good only if this condition is fulfi lled, namely, that the

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revoking will was valid. The condition was not fulfi lled; therefore, the revocation by overt act did not really materialize. (De Molo v. Molo, et al., L-2538, Sep. 21, 1951, citing 68 CJ 799, Gardner, pp. 232-233; 1 Alexander, p. 751).

What are the requisites for a valid revocation by a

subsequent instrument?

1. The subsequent instrument must comply with the formal requirements of a will; (Molo vs. Molo, 90 Phil. 37)

2. The testator must possess testamentary capacity;

3. The subsequent instrument must either contain an express revocatory clause or be incompatible with the prior will (Article 831) [Revocation by a subsequent instrument may be express or implied].· Like any other will, such wills must be probated in order to take effect. (Molo vs.Molo)

Doctrine of Dependent Relative Revocation –

applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with the present intention of making a new testamentary disposition as a

substitute for the old and the new disposition is not made, or if made, fails of effect for some reason. In this case, the revocation will be considered as conditional and dependent on the efficacy of the new disposition, so, if for any reason the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. Note: It must appear that the revocation is dependent upon the valid execution of a new will.

o Viuda de Molo vs. Molo:

Molo died leaving 2 wills. The later will contains an express revocatory clause. Widow

sought probate of the later will but it was denied on the ground that the widow failed to prove that the same was executed in accordance with law. Widow sought probate of

the former clause but it was opposed. Held: Under the doctrine of dependent relative revocation, the destruction of the earlier will was but the necessary consequence of

the testator’s belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect. Hence, even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will because of the fact that it is founded on the mistaken belief that later will has been validly executed

and would be given due effect. The testator did not intend to die intestate.

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DIGESTED CASE: MOLO VS. MOLO 90 Phil 37

FACTS:1. Mariano Molo died on January 24, 1941 without leaving any forced heir either in the descending or ascending line.2. His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz, Gliceria and Cornelio, all surnamed Molo (oppositors-appellants).3. Oppositors – appellants were the legitimate children of a deceased brother of the testator.4. Mariano left two wills, one executed on August 17, 1918 and another executed on June 20, 1939,5. In both the 1918 and 1939 wills Juana was instituted as his universal heir.6. The latter will contains a clause, which expressly revokes the will executed in 1918.7. Juana Molo filed in the CFI a petition seeking the probate of the will executed in 1939.8. The court rendered a decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law.9. In view of the disallowance of the will, the widow filed another petition for the probate of the will executed by the deceased on August 18, 1918.10. The oppositors filed an opposition to the petition contending that, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and still has the effect of nullifying the prior will of 1918.11. Likewise, regardless of the revocatory clause, said will of 1918 cannot still be given effect because of the presumption that the testator himself deliberately revoked it.12. The will of 1918 was admitted to probate.13. Hence this appeal.

ISSUE:Was the admittance into probate proper?

What is the doctrine of dependent relative revocation?

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

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

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

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

The theory on which the “principle of dependent relative revocation “ is predicated in that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on different occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

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DIGESTED CASE 2: MOLO v MOLO

90 PHIL 37

ANGELO; 1951

NATURE

Appeal from an order of the Court of First Instance of Rizal admitting to probate the

last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918.

FACTS

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,

province of Rizal, without leaving any forced heir either in the descending or

ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan

Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz, Gliceria

and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y

Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one

WILL CONTAINS A CLAUSE WHICH EXPRESSLY REVOKES THE WILL EXECUTED IN 1918.

On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First Instance of

Rizal a petition, seeking the probate of the will executed by the deceased on June 20,

1939. There being no opposition, the will was probated. However, upon petition filed

by the herein oppositors, the order of the court admitting the will to probate was set

aside and the case was reopened. After hearing, at which both parties presented their

evidence, the court rendered decision denying the probate of said will on the

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ground that the petitioner failed to prove that the same was executed in

accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on

February 24, 1944, filed another petition for the probate of the will executed

by the deceased on August 17, 1918, in the same court. Again, the same

oppositors filed an opposition to the petition based on three grounds: (1) that

petitioner is now estopped from seeking the probate of the will of 1918; (2) that said

will has not been executed in the manner required by law and (3) that the will has

been subsequently revoked.

ISSUE

WON the declaration of nullity of a subsequent will by the probate court (the 1939 will

in this case, which purports to revoke the 1918 will) would have the effect of

resurrecting the prior will.

HELD

YES

This is the DOCTRINE OF DEPENDENT RELATIVE REVOCATION. The failure of the new

testamentary disposition, upon whose validity the revocation depends, is equivalent

to the non-fulfillment of a suspensive condition, and HENCE PREVENTS THE

REVOCATION OF THE ORIGINAL WILL. But a mere intent to make at some time a will in

place of that destroyed will not render the destruction conditional. It must appear that

the revocation is dependent upon the valid execution of a new will."

A subsequent will, containing a clause revoking a previous will, having been

disallowed, for the reason that it was not executed in conformity with the provisions of

section 618 of the Code of Civil Procedure as to the making of wills, cannot produce

the effect of annulling the previous will, inasmuch as said revocatory clause is void

(Samson vs. Naval, 41 Phil., 838)..

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THE THEORY ON WHICH THIS PRINCIPLE IS PREDICATED IS THAT THE TESTATOR DID

NOT INTEND TO DIE INTESTATE. AND THIS INTENTION IS CLEARLY MANIFEST WHEN HE

EXECUTED TWO WILLS ON TWO DIFFERENT OCCASIONS AND INSTITUTED HIS WIFE AS

HIS UNIVERSAL HEIR. THERE CAN THEREFORE BE NO MISTAKE AS TO HIS INTENTION

OF DYING TESTATE.

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On

page 1400, Volume 123, there appear many authorities on the "application of rules

where second will is invalid", among which a typical one is the following:

"It is universally agreed that where the second will is invalid on account of not being

executed in accordance with the provisions of the statute, or where the testator has

not sufficient mental capacity to make a will or the will is procured through undue

influence, or the such, in other words, where the second will is really no will, it does

not revoke the first will or affect it in any manner." Mort vs. Baker University (1935)

229 Mo. App., 632, 78 S. W. (2d), 498."

These treatise cannot be mistaken. They uphold the view on which the ruling in the

Samson case is predicated. They reflect the opinion that this ruling is sound and good

and for this reason we see no justification for abandoning it as now suggested by

counsel for the oppositors.

Granting for the sake of argument that the earlier will was voluntarily destroyed by

the testator after the execution of the second will, which revoked the first, could there

be any doubt, under this theory, that said earlier will was destroyed by the testator in

the honest belief that it was no longer necessary because he had expressly revoked it

in his will of 1939? In other words, can we not say that the destruction of the earlier

will was but the necessary consequence of the testator's belief that the revocatory

clause contained in the subsequent will was valid and the latter would be given effect?

If such is the case, then it is our opinion that the earlier will can still be admitted to

probate under the principle of "dependent relative revocation".

"THIS DOCTRINE IS KNOWN AS THAT OF DEPENDENT RELATIVE REVOCATION, AND IS

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USUALLY APPLIED WHERE THE TESTATOR CANCELS OR DESTROYS A WILL OR

EXECUTES AN INSTRUMENT INTENDED TO REVOKE A WILL WITH A PRESENT

INTENTION TO MAKE A NEW TESTAMENTARY DISPOSITION AS A SUBSTITUTE FOR THE

OLD, AND THE NEW DISPOSITION IS NOT MADE OR, IF MADE, FAILS OF EFFECT FOR

SOME REASON. THE DOCTRINE IS NOT LIMITED TO THE EXISTENCE OF SOME OTHER

DOCUMENT, HOWEVER, AND HAS BEEN APPLIED WHERE A WILL WAS DESTROYED AS

A CONSEQUENCE OF A MISTAKE OF LAW . . .." (68 C. J.:. 799).

"The rule is established that where the act of destruction is connected with the

making of another will so as fairly to raise the inference that the testator meant the

revocation of the old to depend upon the efficacy of the new disposition intended to

be substituted, the revocation will be conditional and dependent upon the efficacy of

the new disposition; and if, for any reason, the new will intended to be made as a

substitute is inoperative, the revocation fails and the original will remains in full

force." (Gardner, pp. 232, 233.)

"This is the doctrine of dependent relative revocation. The failure of the new

testamentary disposition, upon whose validity the revocation depends, is equivalent

to the non-fulfillment of a suspensive condition, and hence prevents the revocation of

the original will. But a mere intent to make at some time a will in place of that

destroyed will not render the destruction conditional. It must appear that the

revocation is dependent upon the valid execution of a new will." (1 Alexander, p. 751;

Gardner, p. 233.)

We hold, therefore, that even in the supposition that the destruction of the original will

by the testator could be presumed from the failure of the petitioner to produce it in

court, such destruction cannot have the effect of defeating the prior will of 1918

because of the fact that it is founded on the mistaken belief that the will of 1939 has

been validly executed and would be given due effect.

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DIGESTED CASE 3: Vda. De Molo v. Molo 90 Phil 37

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Facts:

The proponent of the will is the widow of the testator, while the opponents are nephews and nieces of the testator. Petitioner filed a pet for the probate of a will executed by the deceased on June 20, 1939. The will was denied probate on the ground that it did not comply with the formalities prescribed by law. In view of the disallowance, the widow filed another petition for the probate of a copy of another will executed on August 17, 1918. The will was admitted to probate in spite of the opposition of the appellants. The will of 1939 contains a revocatory clause expressly revoking the will of 1918.

Ruling:

The will can still be admitted to probate under the principle of ‘dependent relative revocation.’ Under this doctrine, the rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in force.

Diaz vs. de Leon, 43 Phil 413

SUPPLEMENTAL NOTES:

Is the rule of dependent relative revocation applicable if the revocation of the prior will is by physical destruction?

In a Molo obiter, the physical destruction of the will did not revoke the prior will, on the inference that the testator meant the revocation to depend on the validity of a new one.

However, it is arguable whether the prior will should be deemed to be valid despite its physical destruction. It is opined that perhaps the Supreme Court overstepped its bounds of inference. This is aside from the fact that the ruling as to this issue is merely obiter.

But in the case of Diaz vs. de Leon (43 Phil 413 [1922]), the prior will that was destroyed was held to be invalid due to the fact that it was physically destroyed with animo revocandi by a servant in the presence and under the express direction of the testator. Clearly, despite the invalidity of the second will supposedly invalidating the revocatory clause as well, the prior will cannot be given effect because it was physically revoked.

Idem; Actual physical destruction. —

The revocation of a will is a matter of a mental process demonstrated by some outward and visible sign. A revocation by an act to the document comprehends the performance of one or more of the acts specified in the statute as a means of revocation, with the intent to revoke. A symbolical destruction, cancellation or obliteration will not suffice. There must be the act as well as the intention. A literal destruction of the instrument, however, is not essential to effect a revocation. A will may be revoked in its entirety notwithstanding the act of

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revocation does not accomplish the complete physical destruction of the will. A will executed in duplicate, one copy being retained in the possession of the testator, is revoked by the destruction of such copy by the testator with intent to revoke the will. If any one of the acts

prescribed by statute is performed in the slightest manner, joined with a declared intent to revoke, it may be an effectual revocation. An act of little significance from the standpoint of physical change in the instrument will constitute a revocation if it was performed with the purpose and intent to revoke the will. But in order for an act of destruction to effect an entire, as distinguished from a partial revocation, it must be directed against the whole or an essential part of it.25 The law requires that the act of physical destruction or cancellation must be performed by the testator himself, or by some other person in his presence, and by his express direction.26 It is therefore clear that the act of revocation is a personal act of the

testator. He cannot delegate to an agent authority to do the act for him. Another person, however, may be selected by him as an instrument and directed to do the revocatory acts in his presence, in which case any so done in his presence and by his direction is his personal act and operates to the same extent as if done by his own hands. Hence, a destruction not accomplished in the testator’s presence is ineffective as a revocation of the will.27 Thus, in Diaz vs. De Leon,28 where the act of physical destruction was done by a servant of the testator, the Supreme Court, speaking through Justice Romualdez, held:

“According to the statute governing the subject in this jurisdiction, the destruction of a will with animo revocandi constitutes, in itself, a suffi cient revocation. “From the evidence submitted in this case, it appears that the testator, shortly after the execution of the fi rst will in question,

asked that the same be returned to him. The instrument was returned to the testator who ordered his servant to tear the document. This was done in his presence and before a nurse

who testifi ed to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been destroyed.

“The intent to revoke a will is manifest from the established fact that the testator was anxious to withdraw or change the provisions he had made in his fi rst will. This fact is disclosed by the testator’s own statement to the witnesses Canto and the Mother Superior of the Hospital where he was confined.

“The original will herein presented for probate having been destroyed with animo revocandi, cannot now be probated, as the will and last testament of Jesus de Leon.” The law also provides that if the will is burned, torn, cancelled or obliterated by some other person without the express direction of the testator, it may still be established, and the estate distributed in accordance therewith if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established in accordance with the Rules of Court.29 Thus, in Lipana vs. Court of First Instance,30 the proponent fi led a petition for probate of the will, the carbon copy of which was attached. Opposition was entered on the ground that the original of the alleged will was destroyed and therefore revoked. Judgment was entered dismissing the petition on the ground that a carbon copy cannot be admitted to probate. On appeal, it was held by the Supreme Court that if a will is shown to have been torn by some other person without the express direction of the testator, it may be admitted to probate, if its contents, due execution and the fact of its unauthorized destruction are established by satisfactory evidence. The petitioner, therefore, was entitled to a hearing to prove the due execution of the original will and its loss or destruction. Hence, the respondent court had no statutory authority to dismiss the petition without such hearing.

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Refer to the supplemental Notes of Molo vs Molo for additional commentaries of Diaz vs De Leon

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METHODS OF REVOCATION

1. by implication of law

2. by the execution of a document with all the requisites of a will

3. by the physical act of destruction coupled with the intent to

revoke

1. REVOCATION BY IMPLICATION OF LAW

· Certain changes in the testator’s circumstances from which

the law infers or presumes that he intended a change either

total or partial in the disposition of his property.

· There are no cases in law where the entire will is revoked by implication of law; only particular provisions are deemed revoked.

Instances of Revocation by Implication of Law: o commission by an heir, devisee or legatee of an act of unworthiness under Art. 1032

1. alteration, alienation or loss of things given as legacy or devise after the execution of the will

2. preterition of compulsory heirs in the direct line

3. legal separation

4. subsequent adoption of legatees by the testator

2. REVOCATION BY SUBSEQUENT WILL, CODICIL OR WRITING

· In order that a will may be revoked by a subsequent document the law requires that it be executed as provided in case of wills. Hence, it must either be a will in itself or a codicil.

· It is necessary that at the time of revocation, the testator had testamentary capacity to execute the document or act of revocation.

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· If the subsequent document merely adds to the provisions of the first, it will be considered a codicil and construed with the first.

· The subsequent will revokes all previous wills if it purports on its face to be the testator’s last will and to make a complete testamentary disposition of all his property, even in the

absence of words of express revocation.

· Requisites

1. testator must have capacity to revoke

2. revoking will must be a valid will

3. revoking will must contain a revocatory clause or be

incompatible with the prior will

4. revoking will must be admitted to probate

4. REVOCATION BY PHYSICAL DESTRUCTION OF WILL

· Requisites:

1. testator must have testamentary capacity at the time of performing the act of destruction 2. destruction must have been performed with the intent of revoking the will (animus revocandi)

3. actual physical destruction

· Intention and physical act must concur. If one is not met, the will is not revoked.

· It is not necessary that the will be totally destroyed, burnt or torn. It is sufficient id on the face of the will there are visible signs of the physical act of destruction.

· Canceling – marks or lines across the written part of the instrument or a physical defacement, or some mutilation of the writing itself

· Obliteration – to blot out, effacing words so that they cannot be read or drawing a line through the words

· In order that physical destruction may be considered as a revocation, it is essential that it be done in the presence and by the express direction of the testator.

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DIGESTED CASE: DIAZ V. DE LEON:

Facts:

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The testator left two wills, and asked that the first one be returned to him. When it was returned, he asked his servant to tear the document in his presence and that of his nurse. After some time, when testator was asked regarding the first will, he replied that it was already destroyed. The first will was presented for probate, which was opposed on the ground that the second will revoked the first.

Ruling:

The second will revoked the first. The first will was destroyed with animo revocandi. It was destroyed under his express direction. The intention is also manifest from the established fact that the testator was anxious to withdraw or change the provision he made in his first will, which fact he disclosed to third persons. The mere fact that the will is lost or destroyed by a third person without the consent of the testator or is involuntarily destroyed

by the testator himself, does not revoke the will. When a will cannot be found by proper and diligent search after death of the testator and it is shown to have been in the possession of the testator when last seen or that he had ready access to the it, the presumption is that it was cancelled or destroyed.

_______________________________

ARTICLE 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's death shall govern. i The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

Testate Estate of Pilapil, 72 Phil 546

DIGESTED CASE: IN RE: PILAPIL June 27, 1941

FACTS: The probate of the will was opposed on the ground that the will was not properly paged as it was numbered with letters. At the foot of the 1st page appears ―pase ala 2‖ (pass on to the 2nd page). The bottom of the 2nd page also has the phrase ―pase ala 3‖ (pass on the 3rd page). The third page contains the will ―is comprised of 2 articles, containing 16 dispositions and written in 3 pages.

HELD: The will must be admitted for probate. The paging in this case was a sufficient compliance with the law. It is sufficient that the number of pages can be identified. Indeed, the will in this case, as stated in the 3rd page, contains no more, no less than 2 articles, containing 16 dispositions and written in 3 pages.

SUPPLEMENTAL NOTES:

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Idem; Illustrative cases. —

This case illustrates the rule of liberal interpretation as applied by the Supreme Court.72

Samson vs. Naval, 41 Phil 638

Refer to Molo vs Molo Supplemental Notes

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Mercado vs. Santos, 66 Phil 215

DIGESTED CASE: MERCADO v SANTOS

G.R. No. 45629

LAUREL; September 22, 1938

FACTS

the probate of the will of his deceased wife, Ines Basa. The probate court, in June

1931, admitted the will to probate. Almost 3 years later, 5 intervenors moved ex

parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate

the will and to close the proceedings, which motion was denied.

It appears that 16 months after the probate of the will of Ines Basa, intervenor de

Leon filed 3 complaints against Mercado for falsification or forgery of the will probated

as above indicated. The 1st 2 cases were dismissed at the instance of the complainant,

while last case was dismissed on the ground that the will alleged to have been

falsified had already been probated and there was no evidence that the petitioner had

forged the signature of the testatrix appearing thereon. Dissatisfied with the result,

the provincial fiscal moved for reinvestigation of the case. (fyi- petitioner was arrested

4 times!) The petitioner moved to dismiss the case claiming that the will alleged to

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have been forged had already been probated and, further, that the order probating

the will is conclusive as to the authenticity and due execution thereof. The motion was

overruled.

ISSUE

WON the probate of the will of his deceased wife is a bar to the petitioner’s criminal

prosecution for the alleged forgery of the said will

HELD

YES

- Sec.306 of our Code of CivPro:

" Effect of judgment. The effect of a judgment or final order in an action or special

proceeding before a court or judge of the Philippine Islands… may be as follows:

Xxx in respect to the probate of a will… the judgment or order is conclusive upon…

the will or administration… Provided, That the probate of a will or granting of letters of

administration shall only be prima facie evidence of the death of the testator or

intestate.”

- SEC. 625. “ Allowance Necessary, and Conclusive as to Execution. No will shall

pass either the real or personal estate, unless it is proved and allowed in the CFI, or by

appeal to the SC; and the allowance by the court of a will of real and personal estate

shall be conclusive as to its due execution."

- Manahan vs. Manahan:

". . . The decree of probate is conclusive with respect to the due execution thereof and

it cannot be impugned on any of the grounds authorized by law, except that of fraud,

in any separate or independent action or proceeding. "

- The probate of a will in this jurisdiction is a proceeding in rem. The provision of

notice by publication as a prerequisite to the allowance of a will is constructive notice

to the whole world, and when probate is granted, the judgment of the court is binding

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upon everybody, even against the State.

- The proceeding for the probate of a will is one in rem and the court acquires

jurisdiction over all the persons interested, through the publication of the notice

prescribed by section 630 of the Code of Civil Procedure, and any order that may be

entered therein is binding against all of them.

- Sec. 333, par. 4, of the Code of Civil Procedure establishes an incontrovertible

presumption in favor of judgments declared by it to be conclusive:

" The following presumptions or deductions, which the law expressly directs to be

made from particular facts, are deemed conclusive:

xxx xxx xxx

"4. The judgment or order of a court, when declared by this code to be conclusive."

- Conclusive presumptions are inferences which the law makes so peremptory that it

will not allow them to be overturned by any contrary proof however strong. The will in

question having been probated by a competent court, the law will not admit any proof

to overthrow the legal presumption that it is genuine and not a forgery.

- American and English cases show a conflict of authorities on the question as to

whether or not the probate of a will bars criminal prosecution of the alleged forger of

the probated will. We have examined some important cases and have come to the

conclusion that no fixed standard may be adopted or drawn therefrom, in view of the

conflict no less than of diversity of statutory provisions obtaining in different

jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule

most consistent with our statutory law, having in view the needed stability of property

rights and the public interest in general. To be sure, we have seriously reflected upon

the dangers of evasion from punishment of culprits deserving of the severity of the

law in cases where, as here, forgery is discovered after the probate of the will and the

prosecution is had before the prescription of the offense. By and large, however, the

balance seems inclined in favor of the view that we have taken. Not only does the law

surround the execution of the will with the necessary formalities and require probate

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to be made after an elaborate judicial proceeding, but section 113, not to speak of

section 513, of our Code of Civil Procedure provides for an adequate remedy to any

party who might have been adversely affected by the probate of a forged will, much in

the same way as other parties against whom a judgment is rendered under the same

or similar circumstances. The aggrieved party may file an application for relief with

the proper court within a reasonable time, but in no case exceeding six months after

said court has rendered the judgment of probate, on the ground of mistake,

inadvertence, surprise or excusable neglect. An appeal lies to review the action of a

court of first instance when that court refuses to grant relief. After a judgment

allowing a will to be probated has become final and unappealable , and after the

period fixed by section 113 of the Code of Civil Procedure has expired, the law as an

expression of the legislative wisdom goes no further and the case ends there.

- Therefore, that in view of the provisions of sections 306, 333 and 625 of our Code

of Civil Code Procedure, criminal action will not lie in this jurisdiction against the forger

of a will which had been duly admitted to probate by a court of competent jurisdiction.

The petitioner is entitled to have the criminal proceedings against him quashed.

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DIGESTED CASE 2: ATILANO MERCADO vs. SANTOS September 22, 1938

FACTS:

3 years after the will was admitted to probate, intervenors filed a petition to re-open the proceedings. Rosario filed a complaint against Atilano for falsification of the will probated. Atilano claimed that the will had already been probated and that the order probating the will is conclusive as to the authenticity and due execution thereof.

HELD:

The criminal action will not lie. The probate of the a will by the probate court having jurisdiction thereof is considered as conclusive as to its due execution and validity, and that the will is genuine and not a forgery. The ruling of the probate court is binding upon the complainant even if that person was not actually a party to the probate proceeding. Probate proceedings are proceedings in rem. Because there is publication, there is constructive notice to the whole world and judgment or a decree in a probate proceeding is binding upon the entire world, even the state.

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SUPLEMENTAL NOTES:

Criminal action will not lie against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. (Mercado vs. Santos 66 Phil. 215)

Effect of Allowance of Will. —

A judgment or decree of a court with jurisdiction of a proceeding to probate a will, which

admits the will to probate, is conclusive of the validity of the will; it is not subject to collateral attack, but stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal to a higher court. This is clear from the provision of the fourth paragraph of Art. 838 of the New Civil Code, a provision which is also found in Sec. 1 of Rule 75 of the New Rules of Court. Since a proceeding for the probate of a will is essentially one in rem which determines the status of the decedent’s estate as testate or intestate, the judgment rendered by a court having jurisdiction is conclusive

on the whole world, irrespective of who appeared as parties of record

in the proceeding.

SUMMARY: Mercado vs. Santos 66 Phil. 215

The records show that the petitioner had presented a will purporting to be the last will and testament of his deceased wife for probate. The will was admitted to probate without any

opposition. Sixteen months after the allowance of the will, a complaint for forgery of the probated will was instituted by the brothers and sisters of the deceased against the petitioner. The latter moved to dismiss claiming that the will alleged to have been forged had already been probated and that the order of allowance is conclusive as to its due execution. The motion was overruled. Whereupon the petitioner elevated the case to the Court of Appeals. The Court of Appeals denied the petition. As a result, the case was elevated to the Supreme Court for review by certiorari. The question to be resolved, therefore, is whether

or not the probate of the will is a bar to the subsequent criminal prosecution of the petitioner for the alleged forgery of the said will. After citing the pertinent provision of the Code of Civil

Procedure (all of which are reproduced in the Rules of Court, and now crystallized in the provision of the last paragraph of Art. 838) and examining all of the authorities and sources of the laws cited, the Supreme Court, speaking through Justice Laurel, held:

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“American and English cases show a conflict of authorities on the question as to whether or not the probate of a will bars criminal prosecution of the alleged forger of the probated

will. We have examined some important cases and have come to the conclusion that no fixed standard may be adopted or drawn there from, in view of the conflict no less than of diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule most consistent with our statutory law, having in view that needed stability of property rights and the public interest in general. To be sure, we have seriously refl ected upon the dangers of evasion from punishment of culprits deserving of the severity of the law in case where, as here, forgery is discovered after the probate of the will and the prosecution is had before the prescription of the offense. By and large, however, the balance seems inclined in favor of the view that we have taken. Not only does the law surround the execution of the will with the necessary formalities and require probate to be made after an elaborate judicial proceeding, but it provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance when that court refuses to grant relief. After a judgment allowing a will to be probated has become final

and unappealable, and after the period fixed by law has expired, the law as an expression of the legislative wisdom goes no further and the case ends there. “We hold, therefore, that criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction.”

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Effect of Probate Proper (EXTRINSIC VALIDITY)

As long as there has been FINAL JUDGMENT by a court of COMPETENT JURISDICTION, and the period for fi ling a petition for relief (Rule 38, Secs. 2 and 3, Rules of Court)

has expired without such petition having been submitted, the PROBATE PROPER (or allowance) of the will is binding upon the WHOLE WORLD (being a proceeding in rem) insofar as TESTAMENTARY CAPACITY (at least 18; sound mind) and DUE EXECUTION (including all formalities and absence of any ground for disallowance) are concerned. (See Art. 838, last paragraph). In fact, the order allowing probate of the will is not interlocutory and is, therefore, immediately appealable. (Dionisio Fernandez, et al. v. Ismaela Dimagiba, L-23638, Oct. 12, 1967). An order determining the distributive share of the estate to which a person is entitled is, of course, appealable, before final judgment. (Claro Santillon v. Perfecta Miranda, et al., L-19281, June 30, 1965). In no case is the judgment conclusive on matters such as ownership of property. (Castañeda v. Alemany, 3 Phil. 427; Macam v. Gatmaitan, 60 Phil. 385; Ongsingco v. Judge Tan, et al., L-7635, July 25, 1955; Padilla v. Matela, L-07479, Oct. 14, 1955; see also Mercado v. Santos, 66 Phil. 215). However, persons who are neither compulsory heirs, voluntary heirs, legatees, or devisees cannot question anymore the validity of the order of distribution that has long become fi nal. (Rufi no Coloma, et al. v. Atanacio Coloma, L-19399, July 31, 1965).

[NOTE: The proceeding for distribution of the properties is NOT in rem, and cannot affect those who were not PERSONALLY served with summons.].

[NOTE: Distribution is defi ned as the division, by order of the court having authority, among those entitled thereto, of the estate of a person, after the payment of debts and charges.

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(See Carson Petroleum Co. v. Moorcraft, C.A.A. Ill., 12 F. 2d.572).].

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Coso vs. Fernandez Deza, 42 Phil 596

DIGESTED CASE: COSO vs. FERNANDEZ 42 PHIL 596

FACTS:

Frederico was a married man and a resident of the Philippines. He met Rosario in Spain and had illicit relations with her for many years.

The will of Frederico tercio de libre disposicion to the illegitimate son of the testator with Rosario and to her payment by way of reimbursement for the expenses incurred by her in taking care of the testator when he is alleged to have suffered from a sever illness. The CFI set aside his will on the ground of undue influence alleged to have been exercised over the mind of the testator by Rosario.

HELD:

The mere or reasonable influence over a testator is not sufficient to invalidate a will. The influence must be undue, a kind that so overpowers the mind of the testator as to destroy his free agency and make him express the will of another, rather than his own. The mere fact that some influence exercised by a person sustaining an adulterous relation does not invalidate a will, unless it is further shown that the influence destroys the testator’s free agency. The testator is an intelligent man, a lawyer by profession. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. But still under the law, the mistress is incapacitated to inherit.

DIGESTED CASE 2: Pascual COSO, vs. Fermina Fernandez DEZA, et al., G.R. No.L- 16763,December 22, 1921

FACTS: The testator, a married man, became acquainted with Rosario Lopez and had illicit relations with her for many years. They begot an illegitimate son. The testator’s will gives the tercio de libre disposicion to the illegitimate son and also provides for the payment of nineteen hundred Spanish duros to Rosario Lopez by way of reimbursement for expenses incurred by her in talking care of the testator when he is alleged to have suffered from severe illness. The will was set aside on the ground of undue influence alleged to have been exerted over the mind of the testator by Rosario Lopez. There is no doubt that Rosario exercised some influence over the testator.

ISSUE: Whether or not the influence exercised was of such a character to vitiate the will.

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RULING: Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to have that effect, the influence must be undue. The rule as to what constitutes undue influence has been variously stated, but the substance of the different statements is that, to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own. Such influence must be actually exerted on the mind of the testator in regard to the execution of the will in question, either at the time of the execution of the will, or so near thereto as to be still operative, with the object of procuring a will in favor of particular parties, and it must result in the making of testamentary dispositions which the testator would not otherwise have made. And while the same amount of influence may become undue when exercise by one occupying an improper and adulterous relation to testator, the mere fact that some influence is exercised by a person sustaining that relation does not invalidate a will, unless it is further shown that the influence destroys the testator’s free agency. The burden is upon the parties challenging the will to show that undue influence existed at the time of its execution. While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his mind as to destroy his free agency and make him express the will of another rather than his own. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will.

Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practiced, even though it induces the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.

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SUPPLEMENTAL NOTES:

Idem; Undue influence. —

Another ground for the disallowance of wills is if the will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person.

There is undue infl uence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. Concisely stated, undue influence invalidating a will is that which substitutes the wishes of another for those of the testator. Although it has often been stated that undue influence is an unlawful influence, it appears that no more is meant by the expression “unlawful influence,” as used in this connection, than that it is the influence which deprives the testator of his free agency.

No influence upon the testator is sufficient to invalidate a will unless it was directly connected with the execution of the instrument by the testator and was present and operating directly upon the mind of the testator so as to control the disposition of his property under the will. As stated by most authorities, to destroy the validity of a will the undue influence must be specially directly on the testamentary act, so that its effect may be registered there to the

benefi t of some persons and a corresponding detriment to others. A general influence over the testator, although strong and controlling, is not such undue influence as invalidates a will unless, it is brought to bear upon the testamentary act.21

Not every influence exerted by a beneficiary or a third person over the testator inducing him to make a will is an undue influence, authorizing the setting aside of the will. The law recognizes that a testator may act out of a sense of obligation to family or friends, even though his feelings in this respect are quickened by acts of kindness toward him, without having his will invalidated on the ground of undue influence. To establish undue influence it must be shown that the influence exerted

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upon the testator was such as to amount to force, coercion, or importunities which he could not resist. It is impossible to distinguish by arbitrary rule fitting all cases between that which is within the bounds of legitimate influence

and that which makes the influence undue. The following facts must be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness or ignorance or in financial distress.23 Thus, in Barretto vs. Reyes,where the question that had to be resolved was whether or not the importunities employed by a daughter upon her mother to change her will constitutes undue influence so as to invalidate the will, the

Supreme Court declared:

“In our opinion, the alleged effort of Lucia Milagros Barretto in convincing her mother to change her will so as to leave all her properties to Milagros were legitimate. The alleged importunities merely constituted fair arguments, persuasion, appeal to emotions, and entreaties which, without fraud or deceit or actual coercion, compulsion or restraint, do not constitute undue influence sufficient to invalidate a will. Indeed, it was natural and proper for Milagros to exercise some influence over her mother. ‘It is not enough to establish undue influence that the testator has been persuaded to make his will; it must be shown that he made his will under coercion, compulsion, or restraint, so that in fact the instrument does not represent his own wishes. A person has a right, by fair argument, persuasion,

or appeal to the emotions, to induce another to make a will, and even to make it in his own favor, and such persuasion or argument addressed to the judgment or affections, in which

there is no fraud or deceit, does not constitute undue influence. Moderate and reasonable solicitation and entreaty addressed to the testator do not constitute undue influence. Moderate and reasonable solicitation and entreaty addressed to the testator do not constitute undue influence even though they induce the testator to make the kind of a will requested, if he yields intelligently and from a conviction of duty. Even earnest entreaty and persuasion may be employed upon the testator without affecting the validity of the will so long as they are not irresistible, (57 Am. Jur., Wills, Sec. 361, pp. 264-265).

“The influence of a child or spouse to make a will in their favor, in the absence of a showing that it was improperly exercised, does not vitiate the will, even though there may be proof

that such a provision would not have been made but for such importunity. Indeed, it has been held to be natural and proper that persons occupying family relations should exercise some influence over each other and should remember each other in their wills.” (68 C.J., Wills, Sec. 442, p. 752).

It can, therefore, be stated as a rule that every case wherein undue influence is an issue must be viewed in its own particular setting of fact, since in one case it takes but little to unduly influence another, while in another case it takes much more.25

Be that as it may, the following summary of the basic principles of undue influence as a ground for the disallowance of wills made by the Supreme Court in a recent case26 should always be remembered:

“It is worthwhile to recall the basic principles on undue pressure and influence as laid down by the jurisprudence of this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make

him express the will of another rather than his own (Coso vs.

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Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico vs. Del Val, L-18753, 26 March 1956); that the contention that a will was obtained by undue influence orimproper pressure cannot be sustained on mere conjecture or mere suspicion, as it is not enough that there was opportunity to exercise undue infl uence, or a possibility that it might have been exercised (Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue infl uence must be supported by substantial evidence that it was actually exercised (Ozaeta vs. Cuartero, ante; Teotico vs. Del Val, ante; Teotico vs.

Del Val, ante); that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution (Teotico vs. Del Val, ante) that mere general or reasonable influence is not sufficient to invalidate a will (Coso vs. Fernandez, Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the testator (Barretto vs. Reyes, L-5830-31, 31 January 1956), or omission of relations, not forced heirs, evidence of undue infl uence (Bugnao vs. Ubay, 14 Phil.163; Pecson vs. Coronel, 45 Phil. 415).”

SUMMARY:Coso vs. Fernandez Deza

42 Phil. 585

This is an appeal from a decision of the lower court setting aside a will on the ground of undue influence alleged to have been exerted over the mind of the testator by one Rosario Lopez. The evidence shows that the testator, a married man, became acquainted with Rosario Lopez in Spain in 1898 and that he had illicit relations with her for several years thereafter. After his return to the Philippines, she followed him, and remained his mistress until his death in 1919. In his will, the tercio libre disposicion is given to their illegitimate son, while a certain sum of money is given to Rosario Lopez as payment for expenses incurred when he was sick in Spain. The oppositor claims that the will is invalid because it was procured by undue influence. The Supreme Court, speaking through Justice Ostrand, held:

“The burden is upon the parties challenging the will to show that undue influence existed at the time of its execution, and we do not think that this burden has been carried in the

present case. While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his mind as to ‘destroy his free agency and make him express the will of another rather than his own.’ He was an intelligent man, a lawyer by profession, appears to have known his own mind, and may well have been actuated only by a legitimate sense of duty in making provisions

for the welfare of his illegitimate son and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she had made for him. Mere affection, even if illegitimate, is not

undue influence and does not invalidate a will.

“For the reasons stated, the decision of the lower court disallowing the will of Federico Gimenez Zoboli is hereby reversed and it is ordered that the will be admitted to probate.”27

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The Ground of Undue and Improper Pressure and Influence

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(a) Undue infl uence connotes the idea of coercion by virtue of which the judgment of the testator is displaced, and he is induced to do that which he otherwise would not have done. (Gardner, p. 154). It is present when he does something because of fear or a desire for peace or from any other feeling which he is unable to resist. (Torres v. Lopez, 48 Phil. 772). The Civil Code says that “there is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered. The confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant, or in

fi nancial distress.” (Art. 1337).

(b) He who alleges undue influence must prove the same. (Macapinlac v. Alimurong, 16 Phil.41).

(c) There is no undue influence just because a testator has made his mistress, or his illegitimate child by her, the heir to the entire free portion. Mere affection, even if illegitimate, is not undue influence, as long as the giving was voluntary. (Coso v. Fernandez Deza, 42 Phil. 596).

[NOTE: Though such a will may be admitted to probate because of the absence of undue influence, still under the law, a mistress is incapacitated to inherit. (See Art. 1028 in relation to Art. 739).]. (Refer to CIVIL CODE VOLUME III page 191 for more grounds…)

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o (First 2 grounds have been previously discussed)

o 3rd Ground: What will constitute forceor duress or intimidation is governed by the same rules as that of consent in contracts (civil code)

o Violence – where in order to wrest consent, serious or irresistible force is employed

o Intimidation - where one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or

upon the person or property of his spouse, descendants or

ascendants, to give his consent.

o 4th Ground: mere general or reasonable influence over a testator is not sufficient to invalidate a will, to have that effect the influence must be undue

o Undue influence – to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his

free agency and make him express the will of another, rather than his own.

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o On the ground of immoral influence which the relation gives the mistress over her paramour, wills in favor of mistresses have been attacked on the ground of undue influence, but the SC held that this influence will not void a will which is otherwise voluntary.

o Coso vs. Deza: lawyer in his will gave properties to an illegitimate son and payment of money to his paramour as reimbursement for expenses she incurred. Will opposed on ground of undue influence exerted by Lopez over the mind of testator.

Held: While it is shown that the testator entertained strong affections for Lopez, it does not appear that her influence so overpowered and subjugated the mind of the testator as to destroy his free agency and make him express the will of another rather than his won.

Mere affection, even if illegitimate, it not undue influence, and does not invalidate a will.

o 5th Ground:

o Fraud - when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not

have agreed to.

o Although the testator knows that it is a will, the contents thereof are not according to his wishes and he would not have signed the will were it not for the fraud employed on

him

o 6th Ground: Mistake – it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract.

o Testator did not intend to sign a will but some other document.

o May a will that is subject to disallowance because of violence, intimidation, undue influence, fraud or mistake be ratified by the testator? NO unless the

testator re-executes or republishes the void will.

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Guevara vs. Guevara, 74 Phil. 479

DIGESTED CASE:GUEVARA v GUEVARA74 Phil 479

OZAETA; December 29, 1943

FACTS

-In 1931, Victorino L. Guevara executed a will with all the formalities of the law,

wherein he made bequests to his legitimate son, natural daughter and stepchildren

and wife of 2nd marriage.

-On July 12, 1933, Victorino L. Guevara executed a deed of sale in favor of Ernesto M.

Guevara conveying to him the southern half of a large parcel of land in consideration

of the sum of P1 and other valuable considerations.On September 27, 1933 a final

decree of registration was issued in favor of Ernesto M. Guevara over the whole parcel

of land described in the deed of sale above referred to. The registration proceeding

had been commenced by Victorino L. Guevara and Ernesto M. Guevara as applicants, Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also

withdrew their opposition, thereby facilitating the issuance of the title in the name of

Ernesto M. Guevara alone.

On September 27, 1933, Victorino L. Guevara died. His last will and testament,

however, was never presented to the court for probate, nor has any administration

proceeding ever been instituted for the settlement of his estate. Whether the various

legatees mentioned in the will have received their respective legacies or have even

been given due notice of the execution of said will and of the dispositions therein

made in their favor, does not affirmatively appear from the record of this case. Ever

since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara

appears to have possessed the land adjudicated to him in the registration proceeding

and to have disposed of various portions thereof for the purpose of paying the debts

left by his father.

-Rosario Guevara, who had her father's last will and testament in her custody, did

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nothing judicially to invoke the testamentary dispositions made therein in her favor,

whereby the testator acknowledged her as his natural daughter and, aside from

certain legacies and bequests, devised to her a portion of 21.6171 hectares of the

large parcel of land described in the will. But a little over four years after the testator's

demise, she commenced the present action against Ernesto M. Guevara alone for the

purpose hereinbefore indicated; and it was only during the trial of this case that she

presented the will to the court, not for the purpose of having it probated but only to

prove that the deceased Victorino L. Guevara had acknowledged her as his natural

daughter. Upon that proof of acknowledgment she claimed her share of the

inheritance from him, but on the theory or assumption that he died intestate, because

the will had not been probated, for which reason, she asserted, the betterment therein

made by the testator in favor of his legitimate son Ernesto M. Guevara should be

disregarded. Both the trial court and the Court of Appeals sustained that theory.

ISSUE

WON the procedure adopted by the Rosario Guevara is sanctioned by law

HELD

No. We cannot sanction the procedure adopted by the respondent Rosario Guevara, it

being in violation of procedural law and an attempt to circumvent and disregard the

last will and testament of the decedent. The Code of Civil Procedure, which was in

force up to the time this case was decided by the trial court, contains the following

pertinent provisions:

"Sec. 625.Allowance Necessary, and Conclusive as to Execution. — No will shall pass

either the real or personal estate, unless it is proved and allowed in the Court of First

Instance, or by appeal to the Supreme Court; and the allowance by the court of a will

of real and personal estate shall be conclusive as to its due execution.

"Sec. 626.Custodian of Will to Deliver. — The person who has the custody of a will

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shall, within thirty days after he knows of the death of the testator, deliver the will into

the court which has jurisdiction, or to the executor named in the will.

"Sec. 627.Executor to Present Will and Accept or Refuse Trust. — A person named as

executor in a will, shall within thirty days after he knows of the death of the testator,

or within thirty days after he knows that he is named executor, if he obtained such

knowledge after knowing of the death of the testator, present such will to the court

which has jurisdiction, unless the will has been otherwise returned to said court, and

shall, within such period, signify to the court his acceptance of the trust, or make

known in writing his refusal to accept it.

"Sec. 628.Penalty. — A person who neglects any of the duties required in the two

preceding sections, unless he gives a satisfactory excuse to the court, shall be subject

to a fine not exceeding one thousand dollars.

"Sec. 629.Person Retaining Will may be Committed. — If a person having custody of a

will after the death of the testator neglects without reasonable cause to deliver the

same to the court having jurisdiction, after notice by the court so to do, he may be

committed to the prison of the province by a warrant issued by the court, and there

kept in close confinement until he delivers the will."

-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 (section 5, Rule 77), 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. (Section 12, Rule 77, and

section 624, C. C. P.)

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-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. To assure and compel the probate of a will, the law

punishes a person who neglects his duty to present it to the court with a fine not

exceeding P2,000, and if he should persist in not presenting it, he may be committed

to prison and kept there until he delivers the will.

-We hold that if the decedent left a will and no debts and the heirs and legatees desire

to make an extrajudicial partition of the estate, they must first present that will to the

court for probate and divide the estate in accordance with the will. They 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, as is attempted to be done in the instant

case. Absent legatees and devisees, or such of them as may have no knowledge of

the will, could be cheated of their inheritance thru the collusion of some of the heirs

who might agree to the partition of the estate among themselves to the exclusion of

others.

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SUPPLEMENTAL NOTES:

Subsection 8: Allowance and Disallowance of Wills

What is probate?

It is a judicial proceeding wherein the court with jurisdiction determines the formal validity of the will.

Is probate of a will mandatory?

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Yes. In the case of Guevara vs. Guevara (74 Phil 479 [1943]), the Supreme Court did not

sanction the procedure adopted by the respondent in the case in presenting the will not for

probate but to prove that the deceased had acknowledged her (respondent) as his natural

daughter. The Supreme Court ruled 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.”

How do we reconcile Section 1 of Rule 74, which allows the parties, without securing letters of administration, to divide the estate among themselves as they fit by means of public instrument filed in the office of the Register of Deeds, and the mandatory nature of probate proceedings?

Guevara vs. Guevara (supra) clarifies that “Section 1 of Rule 74 merely authorizes the

extrajudicial or judicial partition of the estate of a decedent “without securing letter of

administration. It does not say that… the heirs and legatees may divide the estate among

themselves without necessity of presenting the will to the court for probate.”

A. The probate of a will is mandatory.

Guevara v. Guevara

74 Phil. 479

A natural child of the decedent presented the will, but only to have her acknowledgement as a child proved. She contented that the testamentary provisions should not be given effect because the will had not been probated. The will was ordered probated.

B. There are two kinds of probate:

1. Post-mortem – after the testator’s death

2. Ante-mortem – during his lifetime [it is easier to determine validity and due execution if testator appears before court]

C. Once a decree of probate becomes final and executory, it is res judicata as to the formal validity of the will.

The implicit attributes of ownership which would be imperfect, if a person is not allowed to dispose of his property, such disposal to take effect when he is already

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dead (this is a consequence of rights to property). (See 6 Manresa 297-298). (See also Guevara v. Guevara, et al., L-5405, Jan. 31, 1956).

[NOTE: If the will does not dispose of property, such as when a person is merely named executor, or when a natural child is recognized, while the instrument may in

one sense still be called a will (57 Am. Jur., Sec. 27; Re Meade 118 Cal. 248), still such will need not be probated, for under our law, it would seem that a probate is needed

only if property is to be conveyed by testamentary succession.

(See Art. 838). Furthermore, it has been held that for the purpose of recognizing a natural child by virtue of a will, the will need not be probated (Guevara v. Guevara, C.A., L-7564) though it must, of course, still be a valid will. (Onyaga v. Omilia, 50 Phil. 820).].

[NOTE: While a will is generally an act of liberality, even if certain conditions are stated therein — like the condition to marry a particular person (57 Am. Jur., Sec. 7) — still in some instances, a will may be illiberal,particularly if the burdens imposed are very onerous.].

Need for a Probate

(a) It is essential because under the law “no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.’’ (Art. 838, first paragraph). Even if only one heir has been instituted, there must still be the judicial order of adjudication. (Lopez v. Gonzaga, et al., L-18788, Jan. 31, 1964).

Thus in probate proceedings, the court —

1) orders the probate proper of the will

2) grants letters testamentary or letters with a will annexed

3) hears and approves claims against the estate

4) orders the payment of the lawful debts

5) authorizes the sale, mortgage, or any other

encumbrance of real estate

6) and directs the delivery of the estate or properties

to those who are entitled thereto. (Timbol

v. Cano, L-15445, Apr. 29, 1961).

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However, the heirs concerned may extrajudicially agree to partition the property among them, even though such partition is not in accordance with the provisions of the will. (Manalo v. Paredes, 47 Phil. 938). In this case, ownership is acquired not only by testamentary succession, but by legal succession. If any heir not included in the partition feels aggrieved, his remedy would of course be to ask for the probate of the will. [NOTE, however, that no

judicial approval can be given to an extrajudicial partition based on a will unless the will is first probated. Neither may an unprobated will be presented as evidence of an act of partition among the co-heirs. (Guevara v. Guevara, 74 Phil. 479).]. Even if there are NO DEBTS, if the heirs desire that transmission of the property to them be by virtue of the will, the will must first be probated, and the provisions in the will must not be disregarded unless said provisions are contrary to law. The probate is essential firstly, because the law expressly requires it; secondly, probate is a proceeding in rem (requiring publication, among other things) and, therefore, cannot be dispensed with or substituted by any other proceeding, judicial or extrajudicial without offending public policy; thirdly, the right of a person to dispose of his property by virtue of a will may be rendered nugatory; and fourthly, because absent legatees, and devisees, or such of them as may have no knowledge of the will could be CHEATED of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. (Ventura v. Ventura, et al., L-11609, Sep. 24, 1959). It is to be observed that the ruling in this Ventura case tends to modify, if not completely reverse the dictum in the case of Manalo v. Paredes (47 Phil. 938).

No Prescriptive Period for Instituting Probate Proceedings

In one case, a will was presented for probate twelve years after the death of the testator. It was claimed that the right to institute the proceedings had already prescribed.

HELD:

The will may still be probated, since prescription is not applicable. The Statute of Limitations fixes time limits for the filing of “civil actions’’ but not for “special proceedings’’ of which a probate is admittedly one. The distinction is not merely verbal or a matter of terminology, for there are differences between the two. Probate proceedings are not exclusively established in the interest of the surviving heirs but primarily for the protection of the testator’s expressed wishes that are entitled to respect as an effect of ownership and of the right of disposition. If the probate of validly executed wills is required by public policy, the State could not have intended the Statute of Limitations to defeat that policy. Hence, the will may still be

admitted to probate. (Guevara v. Guevara, et al., 98 Phil. 249).

(10) Estoppel Not Applicable to Probate Proceedings

The rule of estoppel does not apply to probate proceedings for they are invested with public interest, and if estoppel would be applied, the ascertainment of the truth may be blocked.

This should be avoided for the primary purpose of a probate is not the protection of the interest of living persons. (Obispo v. Obispo, C.A. 50 O.G. 514; Guevara v. Guevara, 98 Phil. 249).

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Necessity of Probate. —

According to the fi rst paragraph of Art. 838, which is identical to the rule stated in Sec. 1 of Rule 75 of the New Rules of Court, no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. It is within the jurisdiction of a probate court to approve the sale of property of a deceased person by his prospective heirs or administrator before fi nal adjudication; otherwise, such sale is null

and void and title does not pass to the purchaser. (Dillena vs. CA, G.R. No. 77660, July 28, 1988.) Consequently, under our legal system the probate of a will is mandatory. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the Court: first, because the law expressly provides that “no will shall pass either real or personal estate unless it is provedand allowed in the proper court”; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator’s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees.4

SUMMARY: Rosario Guevara vs. Ernesto Guevara

74 Phil. 479

This is an action commenced by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict legitime as an acknowledged natural daughter of the deceased Victorino Guevara. Ernesto Guevara is a legitimate son of the deceased. It appears that the deceased had left a will disposing of his properties in favor of the defendant and the rest of

his relatives, the plaintiff among them. This will, however, has not been presented for probate. Rosario Guevara, who appears to have had her father’s will in her custody, did nothing judicially to invoke the testamentary dispositions made there in her favor. But a little over four years after her father’s death, she commenced this action for the purpose hereinbefore indicated. It was only during the trial of this case that she presented the will

to the court, not for the purpose of having it probated, but only to prove that the deceased had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance on the theory that the deceased died intestate, because the will had not been probated. Both the trial court and the Court of Appeals sustained the theory. Consequently, the principal question to determine in this appeal is whether the procedure adopted by the plaintiff is in accordance with law. Invoicing the provisions of the different sections of Rule 76 (Now Rule 75) of the Rules of Court, especially Sec. 1 (now reproduced in Art. 838 of the Civil Code), the Supreme Court, speaking through Justice Ozaeta,

held:

“We cannot sanction the procedure adopted by the respondent Rosario Guevara it being in our opinion in violation of procedural law and an attempt to circumvent and disregard the

last will and testament of the decedent. “We hold that if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They 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.

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“Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that ‘no will shall pass either real or personal estate unless it is proved and allowed in the proper court’; and second, because the probate of a will, which is a proceedings in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator’s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notice to each and all

of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reivindicacion or partition.”5

Imprescriptibility of Probate. —

It must also be noted that the statute of limitations is not applicable to the probate of

wills. According to the trend of authority, the applicability of the statute of limitations to probate proceedings must be rejected on the ground that such proceedings are not established in the interest of the surviving heirs, but primarily for the protection of the testator’s expressed wishes. If the probate of validly executed wills is required by public policy, the state could not have intended the statute of limitations to defeat that policy. It is of course true that the rights of the parties should not be left hanging in uncertainty for periods of time far in excess of the maximum period of ten years allowed by law, but the obvious remedy is for the other interested person either (1) to petition for the production of the will and for its probate, or (2) to inflict upon the guilty party the penalties prescribed by Rule 75 of the Rules of Court, or (3) to declare the unworthiness of the heirunder Art. 1032 of the Civil Code for concealing or suppressing the will.6

Ernesto Guevara vs. Rosario Guevara

98 Phil. 249

This case is a sequel and aftermath of the case of Rosario Guevara vs. Ernesto Guevara, 74 Phil. 479. Pursuant to the decision of the Supreme Court in that case Rosario Guevara presented the will of the deceased Victorino Guevara for probate. A motion to dismiss was fi led by Ernesto Guevara on the ground, among others, that the petition for probate is barred by the statute of limitations considering that the testator died on September 27, 1933, and that the petition was filed twelve years later, or, to be exact, on October 5, 1945. As a consequence, the lower court dismissed the petition. The petitioner thereupon appealed to the Court of Appeals which reversed the order of the lower

court. The case was fi nally elevated to the Supreme Court for review by certiorari. Speaking through Justice Concepcion, the Supreme Court held:

“In holding the statute of limitations applicable to the probate of wills, the Court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owner’s right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression.

The lower Court would in effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that ‘potestad suprema que en mi reside para velar por el puntual

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cumplimento de las ultimas voluntades,’ asserted as one of the royal prerogatives in the ‘Real Cedula’ of March 18, 1776. “It is not without purpose that Rule of Court 77 prescribes

that any ‘person interested in the estate may, at any time after the death of the testator, petition the Court having jurisdiction to have the will allowed.’ Taken from the Code of Procedure in California, this provision has been interpreted (by a long line of decisions) as meaning that the statute of limitations has no application

to probate of wills.

“These decisions are of high persuasive value; they represent the trend of authority (57 Am. Jur. 535), and enable us to conclude that reason and precedent reject the applicability of

the Statute of Limitations to probate proceedings because these are not exclusively established in the interest of the surviving heirs, but primarily for the protection of the testator’s expressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. If the probate of validly executed will is required by public policy, as declared by the Supreme Court in the previous case, the state could not have intended the statute of limitations to defeat the policy.”

________________________________________________

Leonida Coronado vs. Court of Appeals, G.R. No. 78778, December 3, 1990

DIGESTED CASE: CORONADO vs. CA January 24, 2002

FACTS:

Juana claims that a portion of the property in question was inherited by her as provided in the will of her grandfather Melecio. Leonida claims that the property in question was bequeathed to her under a will executed by Dr. Monterola, who was allegedly in possession thereof even before the outbreak of World War II. Said will was probated. Juana opposed the probate.

HELD:

While it is true that no will shall pass either real or personal property unless it is proved and allowed in the proper court, the questioned will, however, may be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at the time said document was executed by Melecio in 1918. In this case, nowhere was it alleged nor shown that Leonida is entitled to legitime from Melecio. The truth of the matter is that the record is bereft of any showing that Leonida and the late Melecio were related to each other. Juana is not estopped from questioning the ownership of the property in question, notwithstanding her having objected to the probate of the will executed by Monterola under which Leonida is claiming title to the said property.

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Octavio S. Maloles II vs. Pacita De Los Reyes Phillips, G.R. Nos. 129505 & 133359, January 31, 2000

DIGESTED CASE:MALOLES vs. PHILIPS January 31, 200

FACTS:

Dr. de Santos filed a petition for the probate of his will. He alleged that he had no compulsory heirs. The petition was granted. Shortly after, he died. Octavio, his nephew, filed a ‗Motion for Intervention‘. He argued that as the nearest of kin and creditor of the testator, his interest in the matter is material and direct.

HELD:

In order for a person to be allowed to intervene in a proceeding, he must have an interest in the estate or in the will or in the property to be affected by it. He must be an interested party or one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor, and whose interest is material and direct. Octavio is not an heir or legatee under the will of the decedent. Neither is he a compulsory heir of the decedent. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. He can only inherit if the will is annulled. His interest is therefore not direct or immediate. His claim to being a creditor is belated as it has been raised for the first time only in his reply to the opposition to his motion to intervene and is not supported by evidence. A probate proceeding is terminated upon the issuance of the order allowing the probate of a will. In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. Ordinarily, probate proceedings are instituted only after the death of the testator. However, Article 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself.

_____________________________

Sps. Ricardo Pascual vs. Court of Appeals, G.R. No. 115925, August 15, 2003

DIGESTED CASE: SPS. PASCUAL vs. CA August 15, 2003

FACTS:

Consolacion and Remedios are the niece and granddaughter of the late Canuto. Canuto and 11 others were co-owners of a parcel of land. The land was registered in the name of Catalina, Canuto and Victoriano each owned 10/70 share. Canuto and Consolacion entered a Kasulatan where Canuto sold his share in favor of Consolacion. Remedios filed a complaint against Consolacion for the cancellation of TCT. Remedios claimed that she is the owner because Catalina devised these lots to her in Catalina‘s will. Consolacion sought to dismiss the complaint on the ground of prescription. Consolacion claimed that the basis of the action is fraud, and Remedios should have filed the action within 4 years from the registration of Consolacion‘s title on October 28, 1968 and not some 19 years later.

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HELD:

The action is barred by prescription. The prescriptive period is 10 years counted from registration of adverse title. The four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust. Remedios‘ does not seek to annul the Kasulatan. Remedios‘ action is based on an implied trust. Remedios is not a real party in interest who can file the complaint. Remedios anchored her claim over the lots on the devise of these lots to her under Catalina‘s last will. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. Remedios does not contest this finding. Indeed, during the trial, Remedios admitted that Special Proceedings Case No. C-208 is still pending. Since the probate court has not admitted Catalina’s last will, Remedios has not acquired any right under the last will. REMEDIOS is thus without any cause of action either to seek reconveyance the lots or to enforce an implied trust over these lots.

Camaya vs. Patulandong, G.R. No. 144915, February 23, 2004

DIGESTED CASE: CAMAYA vs. PATULANDONG February 23, 2004

FACTS:

Rufina executed a notarized will where she devised a parcel of land to her grandson Anselmo. Later, she executed a codicil which stated that her 4 children and Anselmo would inherit the above parcel of land. Anselmo filed an action for partition against the Patulandongs. It was granted, subject to the result of the probate of the codicil. Anselmo then sold the land to the Camayas. The probate court then issued an order wherein the title issued to the Camayas were declared void and it voided the sale as well. The Camayas contended that the probate court has no power to declare null and void the sale and their title.

HELD:

The probate court does not have the power to annul the title to lands subject of a testate proceeding pending before it. The probate court exceeded its jurisdiction when it further declared the deed of sale and the titles of the Camayas null and void, it having had the effect of depriving them possession and ownership of the property. A probate court cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that said court could do as regards such properties is to determine whether they should or should not be included in the inventory. Though the judgment in the partition case had become final and executory as it was not appealed, it specifically provided in its dispositive portion that the decision was without prejudice to the probate of the codicil. The rights of the prevailing parties in said case were subject to the outcome of the probate of the codicil.

ARTICLE 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and

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improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n)

Roberto and Thelma Ajero vs. Court of Appeals, G.R. No. 106720, September 15, 1994 (refer above case)

Art. 841 - Will valid even though there is no institution of heir

ARTICLE 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764)

Heirs of Matilde Montinola-Sanson vs. Court of Appeals, G.R. No. 76648, February 26,1988

DIGESTED CASE: Heirs of Montinola Sanson v. CA (Li, Tiffany)

Facts:

A petition was filed by Atty. Hernandez with CFI of Manila seeking the probate of the holographic will of the late Herminia Montinola. The testatrix died single, parentless and childless, devised in this will several of her real properties to specified persons. Matilde, the only surviving sister who was not named in the said will, filed her Opposition to Probate of Will, alleging that the 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 will; and that the will failed to institute a residual heir to the remainder of the estate. 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. 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. Probate court allowed probate of the will, CA affirmed.

Held:

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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 therefore within the right of the testatrix not to include her only sister who is not a compulsory heir in her will.

Also, 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.

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. The fact that some heirs are more favored than others is proof of neither fraud or undue influence. While 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.

________________________________________________________________

SUPPLEMENTAL NOTES:

COMMENT:

(1) Rules for Freedom of Disposition of Estate

(a) If one has no compulsory heirs:

1) He can give his estate or any portion thereof to anybody qualified to inherit from him (his corpse cannot be given except for scientific or educational purposes).

2) BUT he must respect the restrictions imposed by special laws. (Example: If an applicant or grantee of a homestead dies before the issuance of the patent, his rights thereto can be given only to his surviving spouse). (See Sec. 105, Com. Act No. 141, see also

Arayata v. Joya, 51 Phil. 654, which held that a particular law prevails over a general law.).

(b) If one has compulsory heirs (those who cannot be deprived of their legitimes, like a legitimate child, or an acknowledged natural child) —

1) he must respect the legitimes (unless there be a valid cause for an express disinheritance);

2) the free portion can, however, be given to anybody (including of course the compulsory heirs), provided always that restrictions of special laws are complied with.

(2) Examples

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A person is allowed to make one niece the only heir, even if there be other nieces and nephews, as long as there are no compulsory heirs. (Abutan v. Fernandez, 44 O.G. 1849, C.A., June 1948). All nieces may even be disregarded in favor of the husband of one of them. (Pecson v. Coronel, 45 Phil. 216). In the Pecson case, the Court ruled that while ties of relationship are very strong in the Philippines, still there have been many instances when blood relatives (not compulsory heirs) have been deliberately omitted from the will. Moreover, the liberty to dispose of one’s estate by will, if there are no compulsory heirs, is granted expressly by the Civil Code.

SUMMARY: Heirs of the Late Matilde Montinola-Sanson v. CA and Eduardo F. Hernandez L-76648, Feb. 26, 1988

While ties of relationship in the Philippines are very strong, cases of preterit ion of relatives from 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. For that matter, it is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Art. 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will all of his estate or any part of it in favor of any person having capacity to succeed.

Just because blood relatives, other than compulsory heirs have been omitted, does not mean that undue influence had been present. Diversity of apportionment is the usual reason for

making a testament, otherwise, the decedent might as well die intestate. The contention 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, It is not enough that there was opportunity to exercise undue influence or possibility that it may have been exercised. The exercise of improper pressure and undue influence must be supported

by substantial evidence that it was actually exercised.

__________________________________

Art. 842 - One who has no compulsory heirs may dispose by will of all his estate

ARTICLE 842. 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. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a)

Pecson vs. Coronel, 45 Phil 216

DIGESTED CASE: Pecson v. Coronel

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Facts:

Lorenzo Pecson, husband of Angela Coronel, who is a niece of the deceased Dolores Coronel, submitted the will of said deceased for probate. The blood relatives of the deceased opposed the probate on arguing that it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in the will, her true intention being that the same be distributed among her blood relatives; and if such intention was not expressed in fact, it was due to extraneous illegal influence. The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural nor usual that she should completely exclude her blood relatives from her vast estate, in order to will the same to one who is only a relative by affinity, there appearing no sufficient motive for such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very cordial relations with the aforesaid relatives who had helped her in the management and direction of her lands. From the testimony of Atty. Francisco, the deceased’s legal adviser, it was however found that Dolores Coronel revealed to him her suspicion against some of her nephews as having been accomplices in a robbery against her. CFI allowed probate of the will.

Held:

SC Affirmed.

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of relative from one's estate is an exceptional case. It is true that 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 – “Any person who has no forced heirs may dispose by will of all his property or any part of it in favor

of any person qualified to acquire it.”

As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the moment. The proof adduced by this appellee, although contradicted, shows by a preponderance of evidence that besides the services which the opponents admit had been rendered by him to Dolores Coronel since the year 1914, he had also rendered services prior to that time and was the administrator and manager of the affairs of said Dolores in the last

years of her life. It was also shown that 6yrs before the execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in a prior will which was remade to comply with the formalities required by Act No. 2645 enacted after its execution, upon advise of Atty. Francisco. Although such administration and confidence were enjoyed by Pecson always jointly with others and never exclusively, this fact does not show that the will of the testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs as contended by the oppositors, nor does it prevent her from instituting him in 1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a test for determining whether or not such institution in favor of Pecson was the true will of the testatrix. In the absence of any statutory restriction every person possesses absolute dominion over his property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty.

________________________________________

SUMMARY: Pecson v. Coronel

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Oppositors essentially question that validity of the will on the ground that it would have been too impossible that they, as relatives, would be left with nothing as this was not normal in Philippine customs. The SC held that there is nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the beneficiary here would not seem the most usual and customary, still this would not be null per se.

In the absence of any statutory restriction every person possesses absolute dominion over his property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty. If the testator possesses the requisite capacity to make a will, and the disposition of his property is not affected by fraud of undue influence, the will is not rendered invalid by the fact that it is unnatural, unreasonable, or unjust.

SUPPLEMENTAL NOTES:

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

affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor’s expert sufficient to overcome that of the notary and the two instrumental wit nesses, Torres and Natividad (Dr. Diy, being in the United States during the trial, did not testify).

“Nor do we fi nd adequate evidence of fraud or undue influence.

The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter

to be litigated on another occasion. It is also well to note that, as remarked by the Court of Appeals in Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

It is evident from the first paragraph of the article that if the testator has no compulsory heirs, his freedom of disposition is absolute in character. The whole estate is disposable. He can, therefore, dispose of the whole of his estate or any part of it in favor of any person, provided that such person has the capacity to succeed.

Thus, in Pecson vs. Coronel,6 the Supreme Court declared: “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. It is so provided in the first paragraph of Article 763 (now Art. 842).

“Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for more than a quarter of a century, and for this reason it is not tenable

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to say that the exercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the inhabitants of this country whose customs must have been taken into consideration by the legislator in adopting this legal precept, are averse

to such a liberty.”

If the testator has compulsory heirs, his freedom of disposition is not absolute in character. This is so, because under our system of compulsory succession, there is always a portion of the testator’s estate known as the legitime which is reserved by operation of law for the benefit of certain heirs who are therefore called compulsory heirs,7 and over which the testator as a general rule can have no testamentary control. The rule may be illustrated by a person who has a wife and only one legitimate child. According to the law on legitimes, the legitime of the child is one-half of the entire estate, that of his surviving spouse is one-fourth, while the remainder is free or disposable. In such a case, it is evident that if he makes a will, he can dispose of in favor of any person with capacity to succeed only one-fourth of his entire estate. As a matter of fact, if in addition to the two above-mentioned compulsory heirs, the testator has one or more acknowledged natural children, we would have a case in which nothing would be left of the disposable free portion since according

to the law, the legitime of an acknowledged natural child is equal to one-half of the legitime of a legitimate child.9 In such a case, he would not be able to dispose of any part of his estate in favor of any person whom he would desire to succeed from him after his death.

It is, therefore, evident that if the testator has compulsory heirs, his freedom of disposition shall extend only to the disposable free portion of his estate, but not to the legal portion or legitime.

According to the law, such legal portion or legitime is reserved for compulsory heirs. Consequently, the testator as a rule has no testamentary control over it; neither can he as a rule impair it. This untouchable character of the legitime is not only deducible from the

second paragraph of Art. 842, but is expressly stated in other articles of the Code. Thus,according to Art. 904: “The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specifi ed by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever.”

The only case in which the testator may, by his own act, deprive a compulsory heir of his legitime is by means of disinheritance for causes expressly stated by law,10 while the only case in which the law recognizes a right of the testator to impose a charge upon the

legitime is when it allows the said testator to prohibit the partition of the entire estate including the said legitime for a period which shall not exceed twenty years.11

COMMENT:

(1) Grounds for Disallowance of a Will

The grounds given in Art. 839 are exclusive, thus, no other ground can serve to disallow a will. (Pecson v. Coronel, 45 Phil. 216).

NOTE: Grounds of (1) formalities and (2) insanity, have been discussed on the subject of testamentary capacity and formalities required.

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[NOTE: If the signature of the supposed testator has been firmly written in a practically straight line, and the testator is an 82-year-old cripple with the entire left half of his body

paralyzed, the chances are the alleged signatures are not really his. (Junquera v. Borromeo, L-18498, Mar. 30, 1967, 19 SCRA 666).].

___________________________

Escuin vs. Escuin, 11 Phil 332

DIGESTED CASE: ESCUIN v ESCUIN

11 PHIL 332

TORRES; September 24, 1908

FACTS

- On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will

before a notary public of Sevilla, Spain, stating therein that he was a native of Cavite,

the son Francisco Escuin and Eugenia de los Santos, the latter being deceased; that

he was married about six months previously to Maria Teresa Ponce de Leon, and that

he had no lawful descendants; the testator, however, stated in clause three of his will,

that in case he has a duly registered successor, his child would be his sole and

universal heir; but that if, as would probably be the case, there should be no such

heir, then in clause four he named his said father Francisco Escuin, and his wife Maria

Teresa Ponce de Leon and his universal heirs, they to divide the estate in equal shares

between them.

- The testator died on the 20th of January, 1899

- Upon the will having been admitted to probate, commissioners were appointed to

consider claims against the estate

- On the 10th and 12th of July 1907, the attorney for the widow, Ponce de Leon, and

the attorneys who represented the guardian to the minor, Emilio Escuin y Batac,

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appealed to the Court of First Instance from the findings of the aforesaid

commissioners.

- It appears in the proposed partition that, according to the opinion of the

administrator by whom it was signed in the result of the proceedings, the property left

by the estator, in accordance with the accounts passed upon by the court, amounted

to P8,268.02

- From said sum the following must be deducted the credit alluded to be admitted by

the commissioners, 10% remuneration due to the administrator, all legal expenses

paid and approved. Deducting the abovementioned amounts, there remains a

balance of P5,014.81.

- The partition and adjudication was proceeded with of the sum of P5,014.81 into

three shares of P1,671.60 to each one of the parties in interest, that is, the natural

son, Emilio Escuin y Batac, in full control as general heir; the widow, Teresa Ponce de

Leon, as legatee of one-half of the two-thirds of the funds of free disposition; and the

said widow the usufruct of the other half of the aforesaid two-thirds of free disposition,

the bare ownership of the last third held in usufruct by the widow being adjudicated to

Francisco Escuin, as legatee taking into account the provisions of article 817 of the

Civil Code upon making the division.

- The representative of the minor natural child of the testator objected in writing to

the partition proposed by the administrator, and for the reasons he set forth asked

that the same be disapproved, and that in lieu thereof the entire estate be

adjudicated to Emilio Escuin y Batac, the said minor.

- It was also presented that in a certified proceeding, plaintiff asked on the 12th of

January, 1905, that an allowance be granted to him for subsistence for account of the

estate of the late testator, Emilio Escuin de los Santos, and that the same be paid him

monthly in advance; that judgment be entered declaring that the minor, Emilio Escuin

of the same is his general heir; that it be held that the said testator had died without

either lawful ascendants or descendants; that the designation of heirs made under his

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above-mentioned will be declared null and void; and that the defendants be

sentenced to pay the costs in case they did not conform to the complaint, with any

further remedy that the court might consider just and equitable.

- The administrator, Ricardo Summers, in answer to the complaint denied all and

every one of the facts alleged in all and every one of its paragraphs.

- The court below found that Escuin y Batac was the recognized natural child of the

late Emilio Escuin de los Santos, had by Julia Batac; that the testator was also the

natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was

recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of

the heirs of the late testator.

- By an order of the lower court, the judge expressed an opinion that a natural child is

only entitled to one-fourth of the hereditary property, the clause in the will being

annulled only in so far as the amount to be divided should be reduced, taking into

account the share due to the natural son and the right of the father and the widow of

the testator, each to one-half of the remainder of the property of the estate.

ISSUES

1. WON there was preterition

2. WON the testator could be considered to have died intestate

HELD

1. YES

There is preterition to 1/3 of the estate, which amount constitutes the legal portion of

a natural child; and for the reason that mino9r was ignored in the will, the designation

of heirs made therein was, as a matter of fact annulled by force of law, insofar as the

legal portion of the said minor was thereby impaired. Legacies, and betterments shall

be valid, insofar as they are not illegal, for the reason that a testator cannot deprive

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the heirs of their legal portions, express in the cases expressly indicated by law.

2. NO

Notwithstanding the fact that the said designation of heirs was annulled and that the

law recognizes the title of the minor, Escuin y Batac, to one-third of the property of his

natural father, as his lawful and general heir, it is not proper to assert that the late

Emilio Escuin de los Santos died intestate in order to establish the conclusion that his

said natural recognized child is entitled to succeed to the entire estate under the

provisions of article 939 of the Civil Code, inasmuch in accordance with the law a

citizen may die partly testate and partly intestate (art. 764, Civil Code). It is clear and

unquestionable that it was the wish of the testator to favor his natural father and his

wife with certain portions of his property which, under the law, he had the right to

dispose of by will, as he has done, provided the legal portion of his general heir was

not thereby impaired, the two former persons being considered as legatees under the

will.

_____________________________________________

SUPPLEMENTAL NOTES:

Idem; Character of omitted heir. —

The first and most evident requisite of preterition is that the heir omitted must be a compulsory heir in the direct line. The interpretation that should be given to the phrase compulsory heirs in the direct line has been the subject of discussion among Spanish commentators since the Spanish Code was promulgated in 1889. The question is whether “compulsory heirs in the direct line” as contemplated by Art. 854 should include members of the illegitimate family or not. More specifically, as applied to our Code, shall the preterition of an acknowledged natural child, or a natural child by legal fi ction, or an acknowledged

illegitimate child who is not natural also result in the total annulment of the institution of heir as in the case of the preterition of a legitimate child? Spanish authorities are divided in their answers to this question.

According to some commentators, the preterition contemplated by Art. 814 (now Art. 854) is limited only to the omission of legitimate descendants or ascendants in the testator’s will on the ground that it is only these heirs who are entitled as a matter of right to their legitime, while illegitimate children are entitled only as a matter of grace since their legitime must

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always be satisfied from the free portion; consequently, if an acknowledged natural child for instance is omitted in the testator’s will, the only effect is to annul the institution of heir to the extent that his legitime is prejudiced.

Other commentators, on the other hand, believe that since Art. 814 (now Art. 854) does not make any qualification or distinction whatsoever, it is immaterial whether the heir omit ted in the testator’s will is legitimate or illegitimate provided that he is a compulsory heir in the direct line; consequently, the preterition of an acknowledged natural child shall result in the total annulment of the institution of heir.40 We believe that this view, which is supported by the great majority of Spanish Commentators, is more sound. As a matter of fact, this was the view which was applied by the Supreme Court in Lajom vs. Leuterio,41 a case which was decided in 1960.

Hence, compulsory heirs in the direct line are:

(a) legitimate children and descendants, with respect to their legitimate parents and ascendants;

(b) legitimate parents and ascendants, with respect to their legitimate children and descendants;

(c) acknowledged natural children, and natural children by legal fiction;

(d) other illegitimate children referred to in Article 287 (under the Family Code, (c) and (d) are all classified as illegitimate children); and

(e) the father or mother of illegitimate children of the three classes

mentioned.42

It must be observed that the surviving spouse is not included. This is rather regrettable considering the fact that under the present Civil Code, the surviving spouse has been raised to the same category as the other compulsory heirs. Under the Spanish Civil Code, the preterition of the widower or widow does not annul the institution of heir; nevertheless, he or she retains his or her usufructuary rights as provided by law.43 Although there is no

provision in the present Code regarding the effect of the preterition of the widower or widow, it is clear that it shall likewise result in the annulment of the institution of heir to the extent that his or her legitimate is prejudiced.

Problem — X died leaving a will wherein he instituted as his heirs his three daughters, A, B and C without designating their shares. His widow, W, is omitted without being disinher ited. In the will, X also bequeathed a legacy of P20,000 to A. The net value of his estate is P240,000. How shall such estate

be distributed?

Answer — It must be observed that the omission of W in X’s will does not constitute preterition within the meaning of Art. 854 of the Civil Code. The reason is obvious. She is not a compulsory heir in the direct line. Therefore, the only effect of her omission is a partial annulment of the institution of heirs to the extent that her legitime is prejudiced; in other words, she is still entitled to her legitime. Thus, the legitime of A, B and C is 1/2 of the entire estate of P240,000, or P120,000, or P40,000 each, while the legitime of W is the same as that of each of the legitimate children, or P40,000 also. Consequently, the disposable

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free portion is P80,000. It is clear that the legacy of P20,000 given to A is not in officious because it can easily be contained in said disposable free portion. Therefore, it must be paid to her thus leaving a balance of P60,000. This balance shall then be divided equally among A, B and C in accordance with the testator’s will. The distribution shall, therefore, be as follows:

A ................................. P40,000, as compulsory heir

20,000, as voluntary heir

20,000, as legatee

B ................................ P 40,000, as compulsory heir

20,000, as voluntary heir

C ................................ P 40,000, as compulsory heir

20,000, as voluntary heir

W ............................... P 40,000, as compulsory heir

----------

COMMENT:

(1) Non-Necessity of Institution of Heir

A will, unless otherwise defective, is valid, even if:

(a) there is no institution of heir (This was needed before because somebody had to take care of the debts of the decedent, even beyond the value of the inheritance).

(b) the instituted heir is given only a portion of the estate (Reason: Mixed succession is allowed). (Escuin v. Escuin, 11 Phil. 839).

(c) the heir instituted should repudiate or be incapacitated to inherit (because the law has provided particular provisions for said cases). (See Art. 184).

(2) Illustrative Examples

(a) T died, giving nothing in his will to his brother B, and instituting his friend F. If F refuses to accept, or is disqualified to inherit, B as sole legal heir gets the estate without prejudice to the remaining effective provisions of the will.

(b) A will can be given effect even if the only provision therein is for the appointment of an executor, or the disinheritance of a compulsory heir.

(3) Historical Note

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In Roman Law and in Spain up to the 15th century, the institution of heir was so important so that it was considered the “root” or “head” of the will, without which the whole will

was considered void. In the 15th century, however, the “Ordenamiento de Alcala” laid down the maxim that institution was no longer vital, and that mixed succession was possible.

____________________________________________________

Arayata vs. Joya, 51 Phil 654

DIGESTED CASE: ARAYATA VS JOYA

FactsThe father of the defendant made several dispositions of his lots to his siblings by means of last will and testament. His lots were acquired from the insular government.

The plaintiff opposed to the partition of the estate of the deceased because as the surviving spouse and under section 16 of Act 1120, she had the absolute and exclusive right to all the lots.The defendant, including the siblings of the deceased, invoked the provisions of the Civil Code with respect to possession of lands in good faith insofar as their fruits are concerned.

IssueAre the dispositions made by the deceased in his will, in pursuant to the Civil Code, valid?

HeldNo, because the Civil Code is of a general character, while Act 1120 is a special law. The latter should prevail. Therefore, the SC held that the spouse was entitled exclusively to the lots in question.

________________________________________

COMMENT:

(1) Rules for Freedom of Disposition of Estate

(a) If one has no compulsory heirs:

1) He can give his estate or any portion thereof to anybody qualified to inherit from him (his corpse cannot be given except for scientific or educational purposes).

2) BUT he must respect the restrictions imposed by special laws. (Example: If an applicant or grantee of a homestead dies before the issuance of the patent, his rights thereto can be given only to his surviving spouse). (See Sec. 105, Com. Act No. 141, see also

Arayata v. Joya, 51 Phil. 654, which held that a particular law prevails over a general law.).

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(b) If one has compulsory heirs (those who cannot be deprived of their legitimes, like a legitimate child, or an acknowledged natural child) —

1) he must respect the legitimes (unless there be a valid cause for an express disinheritance);

2) the free portion can, however, be given to anybody (including of course the compulsory heirs), provided always that restrictions of special laws are complied with.

___________________________________________________

Octavio S. Maloles II vs. Pacita De Los Reyes Phillips, G.R. Nos. 129505 & 133359, January 31, 2000 ( please refer to digested case and supplemental notes above)

______________________________________________

Art. 844

ARTICLE 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

Del Rosario vs. Del Rosario, 2 Phil 321

SUPPLEMENTAL NOTES:

COMMENT:

(1) Effect of Error

Mere error in designation of name or circumstances is NOT important as long as the intent is clear, and there is positive identification.

Examples:

(a) “My brother, Eduardo” will mean “my brother, Edgardo” if there is no brother named Eduardo, and one brother named Edgardo.

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(b) “Enrique, Gloria and Ramon del Rosario, natural children of Don Clemente del Rosario” — here, Enrique and Ramon will inherit, even if they are not natural children, for this

latter circumstance is merely an additional description of persons already well-identifi ed. (Del Rosario v. Del Rosario, 2 Phil. 321).

(2) Effect of Misdescription

Misdescription may be corrected even by extrinsic evidence (“any other manner”) (See 6 Sanchez Roman 601) but NOT by oral declarations of the testator. (Art. 789).

(3) Example of Second Paragraph of the Article

“My stout cousin, Jorge.” If there be three stout cousins named Jorge, the impossibility of identifi cation renders the institution void; hence, no one will get.

[NOTE: If there are no other legal heirs but the 3 cousins, they may still all get, not as instituted heirs, but as legal heirs, provided they are within the 5th degree of relationship.].

DEL ROSARIO v. DEL ROSARIO 2 PHIL 321

RULING:

The child even if he is not a natural child would still get the property. The fact that he is designated as the natural child is not a condition but merely a description.

____________________________________________

DIGESTED: Del Rosario v. Del Rosario

FACTS:

- Don Nicolas left a will awarding parts of his estate to his nephews, Don Enrique and plaintiff, Don Ramon subject to certain conditions. (See case page 322)

- He also left a part of his estate to his siblings, one of which is Dona Luisa. And upon the latter’s death, her share shall be divided between her two nephews after P1,000 has been

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given to Dona Luisa’s male children.

- Doña Honorata, Don Nicolas’ wife, left her estate to his husband. Upon the husband’s death, it shall be passed on to her husband’s siblings. However, upon the death of her

sister-in-law, Dona Luisa, same provisions shall apply as what is stated in her husband’s will.

- Plaintiff now institutes this present case against the executor, who is one of his uncles, Don Clemente. He seeks to be entitled to a certain part of the share of the estates left to Dona Luisa during her life, and he asks that the executor be directed to render accounts and to proceed to the partition of the estate.

ISSUE: Whether or not he is entitled to any share of the estate left by

the spouses.

HELD:

- Plaintiff is not entitled to any allowance under the will of Don Nicolas because:

a. He is only allowed such amount if widow remarries and he is still continuing studies,

which are not present in this case.

b. His interest in the share of Dona Luisa in Don Nicolas’ will was given to him as an heir and not as a legatee.

- He is not entitled to live in the widow’s house because such was terminated upon the widow’s death.

- He is entitled to be paid the sum of P1500 given to Don Enrique in addition to the P1500 pesos already received by plaintiff under the 9th clause of Dona Honorata’s will because:

a. The will specifically awarded the said amounts to him as a legatee and the fact that they were called natural sons of Don Clemente only serves as a further description and needs no proof to be given.

b. By virtue of the right of accretion, plaintiff is also entitled to the other P1500 share of Don Enrique since the latter died before Don Honorata.

- He is entitled to the share of the estate left by the will of Dona Honorata to Dona Luisa during her life, after deducting P1,000 because:

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a. The share of plaintiff from Dona Luisa’s share is given to him whether or not Dona Luisa dies before or after Dona Honorata.

b. His right in the share of Dona Luisa is expressly left to him as a legacy.

- The reservation of property in a will to the name of specific persons shall be considered as a legacy.

- Where the will authorizes the executor to pay the legacies, expressly or by natural inference, action will lie by the legatee against the executor to compel allowance and

payment hereof. If the executor is not authorized, action will lie against the heirs. An heir on the other hand, can maintain no such action against the executor.

_______________________________________________

Art. 854 – Preterition

ARTICLE 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a)

__________________________________________________

Nuguid vs. Nuguid, 17 SCRA 449

DIGESTED CASE: Nuguid vs. Nuguid 17 SCRA 449 June 23, 1966

FACTS:

Felix = Paz =H

Rosario Nuguid Remedios Other brothers and sisters Rosario died without descendants. She was survived by parents and 6 siblings. Remedios, a siter, filed for the probate of the H will of Rosario, executed some 11 years before her death. The parents opposed alleging that the institution of Remedios as universal heir would illegally preterited them as compulsory heirs in the direct ascending line and therefore, said institution is void.

CFI: null and void

HELD:

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Affirmed. In a proceeding for the probate of a will, the court’s area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will, the due execution thereof, the testamentary capacity and the compliance with the requisites or solemnities prescribed by law. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the Court should meet the issue.

Where the deceased left no descendants, but she left forced heirs in the direct ascending line – her parents, and her H will does not explicitly disinherit them but simply omits their names, the case is one of Preterition and not a case of ineffective disinheritance since there is no specific legacies or bequest.

Preterition consists in the omission in the ‘OR’s will of the forced heirs or anyone of them, whether because they are not mentioned therein or though mentioned, they are neither instituted as heirs nor are expressly disinherited.

Disinheritance in turn, is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. The former is presumed to be involuntary, while the latter is always voluntary. Preterition shall annul

the institution of heir with the exception of the devises and legacies. In ineffective disinheritance, such shall annul the institution of heirs but only insofar as it may prejudice the person disinherited.

_____________________________________

DIGESTED CASE 2: Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449, digested

(Special Proceedings – Difference between Preterition and Disinheritance)

Facts:

Rosario died without descendants, legitimate or illegitimate. Surviving her were her legitimate parents – Felix and Paz, and 6 brothers and sisters.

Remedios, one of the sister filed in court a holographic will allegedly executed by Rosario instituting the former as the sole, universal heir of all her properties. She prayed that said will be admitted to probate and that letter of administration be issued to her.

Felix and Paz opposed to the probate of the will on the ground that by the institution of Remedios as universal heir of the deceased, oppositors – who are compulsory heirs in the direct ascending line – were illegally preterited and that in consequence, the institution is void.

Article 854 provides that preterition of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir.

Petitioners contention is that the present is a case of ineffective disinheritance rather than one of preterition drawing the conclusion that Article 854 does not apply in the case at bar.

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Issue:

WON the institution of one of the sister of the deceased as the sole, universal heir preterited the compulsory heirs.

Held:

Yes. Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line – her parents, and her holographic will does not explicitly disinherit them but simply omits their names altogether, the case is one of preterition of the parents, not a case of ineffective disinheritance.

Preterition “consists in the omission in the testator’s will of the forced heirs or anyone of them, either because they are not mentioned therein, or, through mentioned, they are neither instituted as heirs nor are expressly disinherited”. Disinheritance, in turn, “is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law”.

Where the one sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself, is void. And intestate succession ensues.

DIGESTED CASE 3: NUGUID VS NUGUID

GRN L-2344 17 SCRA 449

JUNE 23, 1966

SANCHEZ, J.:

FACTS:

Rosario Nuguid , single, died in December 30, 1962.She was without descendants but was survived by her parents and siblings. On May 18, 1963, Remedios Nuguid, her sister filed in CFI a holographic will allegedly executed by Rosario on November 17, 1951 or 11 years ago, said will instituted Remedios as the universal heir thereby, compulsory heirs, the ascendants of the decedent, filed their opposition to the probate proceeding. They contend that they were illegally preterited and as a consequence, the institution is void. The court’s order held that “the will in question is a complete nullity.

ISSUE:

Whether or not the compulsory heirs were preterited , thereby rendering the holographic will void.

Whether the court may rule on the intrinsic validity of the will.

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RULING:

The statute we are called upon to apply in article 854 of the civil code which states:

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

The forced heirs, parents of the deceased, were received nothing by the testament. The one-sentence will institutes petitioner as the universal heir. No specific legacies or bequest are therein provided for. It is in this posture that we say that the nullity is complete.

Preterition consists in the omission in the testator’s will of the forced heirs or anyone of them, either because they are not mentioned therein or, though mentioned, they are neither instituted as heirs nor are expressly disinherited as heirs nor are expressly disinherited. Disinheritance is a testamentary disposition depriving any compulsory heir his/her share in the legitime for a cause authorized by law.

On the second issue, the case is for the probate of the will and the court’s area of inquiry is limited to the extrinsic validity of the will comes after the will has been duly authenticated. However if the case is to be remanded for probate of the will, nothing will be gained. The practical conditions: time, effort, expenses and added anxiety, induced us to a belief that we might as well meat head-on the issue of the validity of the provisions of the will in question.

_________________________________________________________

DIGESTED CASE 4: Nuguid v Nuguid G.R. No. L-23445, June 23, 1966

Facts:

Rosario Nuguid died single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, and 6 brothers and sisters. Petitioner Remedios Nuguid filed in Court a holographic will allegedly executed by Rosario Nuguid. The parents of the deceased Rosario Nuguid, entered their opposition to the probate of her will on the ground that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors —

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who are compulsory heirs of the deceased in the direct ascending line — were illegally preterited and that in consequence the institution is void. The court's order held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs.

Issue:

Whether the institution of universal heir is void due to preterition

Ruling:

Yes. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line — her parents. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. The one- sentence will here institutes petitioner as the sole, universal heir — nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete.

Perforce, Rosario Nuguid died intestate. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited."

Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law." The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.

Preterition under Article 854 of the Civil Code, "shall annul the institution of heir." This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition.

Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived.

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

____________________________________________________

SUPPLEMENTAL NOTES:

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What is the effect of preterition?

Preterition annuls the institution of heir but maintains the validity of legacies and devises to the extent that these latter do not impair the legitimes.

What is meant by “annulment of the institution of heir”?

Such annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned (Nuguid vs. Nuguid, 17 SCRA 449 [1966]). Thus, if the will contains only institutions of heirs and there is preterition, total intestacy will result.

Distinguish Preterition from Ineffective Disinheritance.

Preterition is (total) omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, the article will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share.

GENERAL RULE:

In probate proceeding, the court‘s area of inquiry is limited to an examination of, and resolution on the extrinsic validity if the will, the due execution thereof, the testatrix‘s testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The probate court cannot inquire into the intrinsic validity of testamentary provisions.

EXCEPTION: Practical considerations, e.g. when the will is intrinsically void on its face.

In Nuguid vs Nuguid (17 SCRA 449), the Supreme Court held that, if the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation would be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort, expense, plus added anxiety.

REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS:

1. cause of institution of heirs must be stated in will;

2. cause must be shown to be false;

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3. it must appear from the face of the will that the testator would not have

made the institution had he known the falsity of the cause.

Where the one-sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself, is void. Intestate succession ensues. (Nuguid vs. Nuguid, et al. 17 SCRA 449)

PRETERITION (ART. 854)

Omission in the testator‘s will of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator.

Requisites:

1. The heir omitted must be a compulsory heir in the direct line;

2. The omission must be complete and total in character; and

3. The compulsory heir omitted must survive the testator.

There is no total omission when:

a. A devise/legacy has been given to the heir by the testator

b. A donation inter vivos has been previously given to the heir by the testator; or

c. Anything is left from the inheritance which the heir may get by way of intestacy.

NOTE: In the above cases, the remedy of the heir is completion of legitime under Art. 906, in case the value of the property received is less than the value of the legitime.

Effects of Preterition:

1. It annuls the institution of heir;

2. The devises and legacies are valid insofar as they are not inofficious; and

3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

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NOTE: In case of omission without preterition, the rule in Art. 855 should be followed. The suggested alternate phrasing of Dr. Tolentino to the said article is: “The share of the compulsory heir omitted in a will must be first taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the heirs given to them by will.”

PRETERITION vs. DISINHERITANCE

PRETERITION

1. deprivation of a compulsory heir of his legitime is tacit

2. may be voluntary but the law presumes that it is involuntary

3. law presumes that there has been merely an oversight or mistake on the part of the testator.

4. omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies/ devises.

DISINHERITANCE

1. deprivation of a compulsory heir of his legitime is express.

2. always voluntary.

3. done with a legal cause

4. if disinheritance is not lawful, compulsory heir is merely restored to his legitime.

Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line—her parents, and her holographic will does not explicitly disinherit them but simply omits them altogether, the case is one of preterition of parents, not a case of ineffective disinheritance. (Nuguid vs. Nuguid 17 SCRA 449)

NOTE: Preterition of the surviving spouse (SS) does not entirely annul the institution of the heir since SS is not a compulsory heir in the direct line. However, since Article 842 protects the legitime of the SS, the institution is partially annulled by reducing the rights of the instituted heir to the extent necessary to cover the legitime of SS. (Tolentino)

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Acain vs. IAC, G.R. No. 72706, October 27, 1987

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DIGESTED CASE: Acain v. IAC GR No. 72706, October 27, 1987

Facts:

In 1960, Nemesio Acain wrote a will giving all his properties to his brother Segundo, or, in case Segundo predeceases Nemesio, to Segundo’s children. Segundo died before Nemesio. Petitioner Constantino is one of Segundo’s children. In 1984, after the death of Nemesio, Constantino petitioned the court to have the will probated. This was opposed by Rosa Diongson, Nemesio’s wife, and Virginia Fernandez, a legally adopted child of Nemesio and Rosa. The opposition was denied by the trial court, hence Diongson and Fernandez went to the SC, which transferred the case to the CA. The CA ordered the trial court to dismiss the probate petition since Diongson and Fernandez were preterited. Constantino went to the SC on certiorari, contending that the CA could not rule on the intrinsic validity of the will before it is admitted for probate. Diongson and Fernandez opposed, contending that certiorari is not a proper remedy.

Issues:

Whether or not certiorari is a proper remedy.Whether or not probate courts (the CA in this case) could rule on the intrinsic validity of a will before the will is probated.Whether or not Diongson was preterited.Whether or not Fernandez was preterited.

Rulings:

Yes, certiorari is a proper remedy. The existence of the remedy of appeal does not preclude certiorari, if appeal would not afford speedy and adequate relief.Yes. For practical considerations [???], the CA should be allowed to rule on the intrinsic validity of a will before the will was probated. If the probate of the will is allowed when on its face the will appears to be intrinsically void would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility.No. Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line.Yes. Her legal adoption by the Nemesio has not been questioned by Constantino. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

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DIGESTED CASE 2: Acain v. IAC, et al.

L-72706, Oct. 27, 1987

FACTS:

Nemesio Acain executed a will whereby he gave all his shares in the conjugal property to his brother Segundo. In case Segundo predeceases Nemesio, all his shares were to be given to Segundo’s children. Segundo predeceased Nemesio. Thus, Constantino and his brothers

and sisters, the children of Segundo, fi led a petition for probate claiming the property as Nemesio’s heirs. During the petition for probate, Virginia A. Fernandez, a legally adopted daughter of Nemesio and the latter’s widow, Rosa Diongson Vda. de Acain, moved to dismiss on the grounds:

(1) Constantino has no legal capacity to institute these proceedings;

(2) he is merely a universal heir; and

(3) the widow and adopted daughter have been preterited.

The trial judge denied the motion. The Intermediate Appellate Court granted Virginia A. Fernandez’s petition and ordered the trial court to dismiss the petition for probate of Nemesio’s will.

HELD:

The Supreme Court in affi rming the Appellate Court’s decision held that the universal institution of Constantino together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullifi cation of such institution

of universal heirs — 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 of the Civil Code offers no leeway for inferential interpretation. No legacies or devises having

been provided in the will, the whole property of the deceased has been left by universal title to said heirs and his brothers.

The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy except that proper legacies and devises must be respected.

J. Ameurfi na Melencio-Herrera (concurring):

One must distinguish whether the omission of a forced heir in the will of the testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterition and total intestacy results. The reason for this is the “inability to determine

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how the testator would have distributed his estate if none of the heirs had been omitted or forgotten.” On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited, i.e., the nullity is partial unlike in true preterition where the nullity is

total.

Preterition is presumed to be only an involuntary omission, i.e., that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from the estate.

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DIGESTED CASE 3: ACAIN vs. IAC October 27, 1987

FACTS:

Constantino filed a petition for the probate of the will of the late Nemesio. The will provided that all his shares from properties he earned with his wife shall be given to his brother Segundo (father of Constantino). In case Segundo dies, all such property shall be given to Segundo‘s children. Segundo pre-deceased Nemesio. The oppositors Virginia, a legally adopted daughter of the deceased, and the latter's widow Rosa filed a motion to dismiss on the following grounds: (1) the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been preterited.

HELD:

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited. Insofar as the widow is concerned, Article 854 may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. The same thing cannot be said of the other respondent Virginia, whose legal adoption by the testator has not been questioned by petitioner. Adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. This is a clear case of preterition of the legally adopted child. Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs - without any other testamentary

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disposition in the will - amounts to a declaration that nothing at all was written. In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it. Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive. At the outset, he appears to have an interest in the will as an heir. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased.

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SUPPLEMENTAL NOTES:

Are adopted children under the ambit of the term “compulsory heir in the direct line”?

Yes. This question has been answered in the affirmative by Acain vs. IAC (155 SCRA 100 [1987]). According to Acain, since an adopted child is given by law the same rights as a legitimate child, vis-à-vis the adopter, then the adopted child can, in proper cases, invoke Article 854 in the same manner that a legitime child can.

SUMMARY: Acain v. IAC, et al.

L-72706, Oct. 27, 1987

Preterition consists in the omission in the testator’s will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited.

Insofar as the widow is concerned, Art. 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is

omitted from the inheritance, for she is not in the direct line.

SUMMARY: Acain vs IAC

Facts:

ISSUE:

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whether or not private respondents have been pretirited.

HELD:

In the widow’s case: NO. In adopted daughter’s case: YES.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited. Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner. U nder Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other

testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation. No legacies or devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy except that proper legacies and devises must, as already stated above, be respected.

The general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will. The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain

provisions of the will. Where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari

may be entertained, particularly where appeal would not afford speedy and adequate relief.

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Application of Pretirition:

1. In his will, X stated: “I instituted my 2 children A and B as my sole heirs to my entire estate, and to C, my other child, I give nothing. Is

there preterition here?

There is disinheritance (Article 918), not preterition. Here X makes it known that he really had no intention to give any part of his estate to C. If the disinheritance is improper, C can still get his legitime. The institution of A and B remains valid.

2. X institutes his sons A and B, and a friend C. His 3rd son D was omitted. If the entire estate is 90, 000.00, how should his estate be distributed?

Since the institution is annulled, it is as if there was no institution, hence, intestate succession takes place. A, B and D will get 90, 000. C, the friend gets nothing.

3. X had 2 sons, A and B. In X’s will, he gave C a friend a legacy of 10, 000 out of an estate of 100, 000. A and B were omitted. How should the estate on X’s death be distributed?

Since the estate is worth 100, 000, the free portion is 50, 000. Therefore, the legacy of 10, 000 is not inofficious and should remain effective. The remaining 90, 000 should be divided equally between the 2 estate.

4. X had 2 legitimate sons A and B. In X’s will, he gave a friend C a legacy of 10, 000. He also instituted A as heir and deliberately omitted B. If the estate is 100, 000, how should the estate be distributed on X’s death?

In view of the preterition, the institution of A is not valid, but the legacy is effective for the

legitime has not been impaired. Therefore, the remaining 90, 000 shall be divided intestate between A and B.

5. In the problem above, suppose the legacy is 60, 000, how would the estate be distributed?

The estate being 100, 000, the free portion is only 50, 000, hence, the legacy of 60, 000 is

inofficious and should be reduced by 10, 000, leaving A and B 25, 000 each.

6. X instituted Y a friend as heir to an estate of 100, 000. Y dies ahead of X but leaves a son Z.

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Upon X’s death, will Z get anything?

No, because Y the father was a voluntary heir who predeceased the testator. The estate should therefore go to the intestate heirs of X.

7. T has three legitimate children, X, Y and Z. He institutes in his will X, Y and his cousin C. The estate is 150, 000.

The institution is totally annulled. There is total intestacy. Thus, X, Y and Z will get 50, 000

each and C gets nothing

8. In the same example, T gives instead to C a devise of real property worth 30, 000.

The remaining 120, 000 of the estate shall be distributed 40, 000 each to X, Y and Z.

9. In the preceding example, the legacy given to C is 100, 000

The legacy is inofficious by 25, 000. The estate shall be distributed be distributed as follows:

75, 000 to C, 25, 000 equally X, Y and Z.

10. Suppose, in the first example, Z is given 15, 000.

Z will be entitled to his full legitime of 25,000 (he gets additional 10, 000). The balance of

125, 000 shall be distributed equally between X, y and z.

11. Same, but T gives to C his cousin 50, 000, X and Y 100, 000 to be divided equally between them, out of his entire estate of 150, 000.

There is no preterition. Z is entitled only to get his share of the legitime of 25, 000. C will get

the 50, 000 as it is not inofficious and the remainder of 75, 000 shall be divided equally between X and Y. The presumption is that T wants Z to receive only his share of the legitime.

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12. Suppose in the first example, Z is the wife of T. Is there preterition?

There is no preterition because Z is not a compulsory heir in the direct line. Z shall be merely

restored to her legitime to be taken from the free portion. Under Article 892 (par, 2), it shall be equal to the legitime of each pf X and Y. The legitme of X and Y is ½ of the hereditary estate or 75, 000 (Art. 888, [par. 1]. They get 37, 500 each. So, Z also gets 37, 500. The remainder shall go to C.

Can there be preterition of an adopted child?

Yes, because an adopted child has the same rights as a legitimate child. (Acain vs. IAC, Oct. 27, 1987)

______________________________

Suppose that it is the husband or the wife who is omitted in the testator’s will, would there be a preterition, which would have the effect of annulling

the institution of heirs?

No, because a husband or wife is not a compulsory heir in the direct line. However, such husband or wife would still be entitled to his or her legitime, in other words, there

would be an annulment of the institution of heirs but only to the extent that the legitime of such husband or wife is prejudiced.

Is there any difference as to effect between the omission of a forced heir by mistake or inadvertence and voluntary or intentional omission?

Yes, in Acain vs. IAC, G.R. No. 72706, Oct. 27, 1987, it was held that if preterition is by mistake or inadvertence, there is true preterition and total intestacy results. The reason for this is the inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten. If the omission is intentional, the effect would be a

defective disinheritance covered by Article 918, in which case the institution of heirs is not wholly void but only insofar as it prejudices the legitime of the person disinherited. The nullity is partial unlike in true preterition where the nullity is total.

Preterition is presumed to be only an involuntary omission; that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from the estate.

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What is the right of the preterited heir or heirs?

They are entitled not only to their shares of the legitime but also to those of the free portion which was not expressly disposed of by the testator by way of devise and legacies, unlike in the case of improper disinheritance or incomplete legitime wherein their right is limited to the completion of their legitime. If the omitted heir is not in the direct line, the institution of heir is annulled only to the extent that it impairs the legitime. This is not true preterition.

Can an adopted child be disinherited by the adopting parent?

Under the Domestic Adoption Act of 1988 (R.A.) No. 8552 approved on February 25, 1988), adopted children can be disinherited by the adopting parents (Section 19, R.A. 8552). The reason for this is that, the right of the adopting parent to rescind the adoption authorized under Article 192 of the Family Code had been abrogated by the new law. Instead of rescission, the new law simply authorized the adopting parents to disinherit the adopted if any of the causes for disinheritance under Article 919 exists. This new provision is a

complementary to the prevailing jurisprudence that adopted children, if preterited in a will, shall cause the nullification of the institution if heirs (Acain vs. IAC, 155 SCRA 500).

If the adopter died intestate, no disinheritance could be effected because disinheritance can apply only in testamentary succession.

Under the new law, the adopted child is impliedly given the right of representation which right was not accorded to him before (Section 17, R.A. No. 8552).

What are the sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate?

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

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

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

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

spouse of the testator;

5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes

the testator to make a will or change one already made;

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

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

8. An attempt by one of the parents against the life of the other, unless there has been reconciliation between them (Article 920).

NOTES:

· Enumeration is exclusive.

· Nos. 2, 5 & 7 are the same as the grounds in Art. 919.

· Exception to par. 6: Adoption, age of majority.

· The loss of parental authority should have been effected either:

i. By final judgment in a criminal case, or

ii. By final judgment in a legal separation proceeding, or

iii. By judicial order due to excessive harshness, corrupting orders or examples or counsels, making the child beg, or abandonment.

· Relatedly, those found guilty of adultery or concubinage with one another cannot donate

properties to each other (Article 739). Neither can they succeed each other (Article 1028).

· Exception to par. 8: If the offended parent has forgiven the offending parent or if reconciliation has been reached between them, the disinheritance of the former will not be sanctioned by law.

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Solano vs. CA, G.R. No. L-41971, November 29, 1983

DIGESTED CASE: Solano vs. CA, Bienvenido/Emeteria Garcia

GR L 41971 November 29, 1983

FACTS:

Bienvenido and Emeteria filed an action for recognition against Melita Solano Meliton died during the pendency of the petition and his daughter substituted him while asking for the probate of the will of the decedent. RTC specified the legal issues as 1) the recognition of Garcias, 2) correct status of Zonia, 3) the hereditary share of each of them in view of the probated will. In deciding, RTC declared Garcias as illegitimate children of late Meliton.; the institution of Sonia as sole heir declared null and void, the 3 children shall share equally the estate CA affirmed.

ISSUE:

Whether or not total intestacy resulted from the declaration that the institution of sole heir from decedent’s will.

RULING:

That being compulsory heirs, the Garcias were preterited from Meliton’s will, and as a result, Sonia’s institution as sole heir is null and void pursuant to Art. 854

“The preterition or omission of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir, but the devises and legacies shall be valid…

The intention of the decedent is to favor Sonia with certain portions of his property which the testator had the right to such so that it should be upheld as to the one-half portion of the property that the testator could freely dispose of Sonia’s share is hereby declared to be 4/6 of the estate and Garcias 1/6 each. The usufruct in favor of will should not be invalidated all together.

DIGESTED CASE 2: Sonia Ana T. Solano v. Court of Appeals

L-11971, Nov. 29, 1983

FACTS:

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Meliton Solano executed a will where he instituted as only heir, Sonia Solano, his acknowledged natural child, but omitted (preterited) two spurious children who were able to obtain compulsory recognition. Meliton also devised certain parcels of land in usufruct in favor of a devisee. How will the 3 compulsory heirs (Sonia and the 2 spurious children) inherit?

HELD (thru J. Herrera):

The devise is valid BUT the institution of Sonia is void because of the preterition. However,

instead of the 3 heirs sharing in the intestate estate (after removing the devise), said balance or remainder will all go to Sonia after subtracting the legitimes of the other two, since this was the clear intent of the testator.

[NOTE: It seems this ruling is not in conformity with Art. 854 on preterition. What the law wants is to distribute the balance (after the removal of the devise) to the 3 heirs as in intestate succession. For why should the free portion left be all given to Sonia when her institution in the will is VOID.].

________________________________________________

DIGESTED CASE 3: SOLANO v CA

136 SCRA 122

MELENCIO HERRERA; November 29, 1983

NATURE

Petition for Review on certiorari

FACTS

- Bienvenido Garcia and Emeteria Garcia filed an action for recognition against Meliton

Solano, claiming to be illegitimate children. Solano died during the pendenct of the

suit. Zonia Solano was ordered substituted since she was the only surviving heir

mentioned in his will.

- The Garcias filed their "Reply to ZONIA's Appearance and Supplemental Cause of

Action" impugning the recognition of Zonia as an acknowledged natural child with the

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prayer that she be declared instead, like them, as an adulterous child.

- The trial court ruled that the Garcias and Zonia were illegitimate children. The CA

affirmed. Both courts found the following facts:

Solano married Riosa. The latter died. On a world tour, he met Gorand. He married

her. However, she left him in 1929. In 1930, he had relations with Juana Garcia. The

Garcias were then born out of the affair. Though documents do not name him as

father, Solano recognized them as shown by his acts of support. In 1935, he lived with

Trinidad Tuagnon. ZONIA Ana Tuagnon was born. In her birth certificate, it was

indicated that she was illegitimate. During the Jap occupation, Solano was able to

obtain divorce from Gorand. Later, Solano and Trinidad Tuagnon executed an

"Escritura de Reconocimiento de Unit Hija Natural" acknowledging ZONIA as a "natural

child" and giving her the right to use the name ZONIA Ana Solano y Tuagnon. In 1969,

Solano executed a will, making Zonia as his universal heir, except for certain parcels

of land wherein Trinidad was granted usufructuary rights.

ISSUE/S

1. WON the CA and TC acted without jurisdiction or in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano an illegitimate child of the late Solano in an action where private respondents, sought recognition as natural children of Solano

2. WON the CA and TC acted without jurisdiction or in excess of jurisdiction in

declaring null and void the institution of heir in SOLANO's will; in concluding that total

intestacy resulted therefrom; and distributing the shares of the parties in SOLANO's

estate when said estate was under the jurisdiction and control of the Probate Court in

Special Proceedings No. 842

HELD

1. NO

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Reasoning

-In her "Appearance of Substitute Defendant Zonia Ana T. Solano ... Sole and Universal

Heir", ZONIA specifically prayed that she be allowed to assume her duties as executrix

and administratrix of the probated will. In other words, ZONIA did not only rely upon

SOLANO's Answer already of record but asserted new rights in her capacity as sole

and universal heir, "executrix and administratrix, "and challenged the right of the

GARCIAS to recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights and defenses in her own personal capacity.

- During the trial, the Garcias presented their evidence to support their claim. Zonia did not object. She even presented her own evidence to prove she was a legitimate child. Thus, as raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such.

2. No.

Reasoning

-The general rule would be that the court would have no jurisdiction. However, there

is a peculiar situation in the case. First, Solano himself instituted the petition for

probate of the Will during his lifetime. With the Will allowed to probate, the case would

have terminated except that it appears that the parties, after SOLANO's death,

continued to file pleadings therein. Second, the Trial Court ordered the impleading of

the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases

were consolidated. Third, it is settled that the allowance of a Will is conclusive only as

to its due execution. A probate decree is not concerned with the intrinsic validity or

legality of the provisions of the Will.

- The TC then had jurisdiction to declare Zonia and the Garcias illegitimate. It found

that the acknowledgement of Zonia as a natural child is erroneous since Solano was

still married to Gorand. The Garcias are compulsory heirs, and as a result of such

preterition the institution of ZONIA as sole heir by SOLANO is null and void pursuant to

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Article 854.

- The TC had jurisdiction in resolving the issue of the hereditary shares. However, the

the pretention of the GARCIAS should annul the institution of ZONIA as heir only

insofar as the legitime of the omitted heirs is impaired

- The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs.

Akutin, et al., 15 which held that where the institution of a universal heir is null and

void due to pretention, the Will is a complete nullity and intestate succession ensues,

is not applicable herein because in the Nuguid case, only a one-sentence Will was

involved with no other provision except the institution of the sole and universal heir;

there was no specification of individual property; there were no specific legacies or

bequests. In contrast, in the case at bar, there is a specific bequest or legacy so that

Article 854 of the Civil Code, supra, applies merely annulling the "institution of heir.

- Lastly, it should be noted that Sonia only questioned the court’s jurisdiction in the

SC. She is already estopped.

__________________________________________

DIGESTED CASE 4: SOLANO VS CA 136 SCRA 122

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

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

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

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

ISSUE:

Is the will valid?

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HELD:

· The Will, therefore, is valid subject to that limitation. It is a plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor

should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of.

· The case of Nuguid vs. Nuguid, et al., reiterating the ruling in Neri, et al. vs. Akutin, et al., which held that where the institution of a universal heir is null and void due to pretention, the Will is a complete nullity and intestate succession ensues, is not

applicable herein because in the Nuguid case, only a onesentence Will was involved with no other provision except the institution of the sole and universal heir; there was no specification of individual property; there were no specific legacies or

bequests.

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

____________________________________________________________

SUPPLEMENTAL NOTES:

EFFECT OF PRETERITION

Annulment of the institution of an heir but validity of legacies and devisees to the extent that these latter do not impair legitimes.

Distinction between heirs and legatees/devisees – This in the only instance when there is still a practical effect in the distinction between an heir and a legatee or devisee in Art782.

According to the case of Nuguid v. Nuguid, annulment of institution of heir means only the legacies and devises will merit consideration if expressly given in the will. Art854 does not mean that the mere institution of a universal heir in a will

– void because of preterition – would give the heir so instituted a share in the inheritance. As to the heir, the will is inexistent.

In that case, the only provision in the will was the institution of the petitioner a universal heir. That institution, by itself, was held null and void.

Therefore, intestate succession ensued.

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However, this was muddled in the case of Solano v. CA wherein it was ruled that the preterition of illegitimate children should annul the institution of the heir “only insofar as the legitime of the omitted heirs is impaired”.

Prof. Balane says this is not annulment but reduction, and this would erase the distinction

between the effect of preterition on the institution of the heir and its effect on legacies and devises.

Fortunately, this was cleared up in Acain v. CA wherein it was held that “Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.”

RE-CAP – the correct rule of preterition is that:

Preterition abrogates the institution of heir but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of heirs and there is preterition,TOTAL INTESTACY will result.

If there are legacies or devises and there is preterition, the legacies or devises will stand, to the extent of the free portion [merely to be reduced and not set aside, if the legitimes are impaired] but the institution of heirs, if any, will be swept away.

PRETERITION v. INEFFECTIVE DISINHERITANCE

Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule is inadvertent omission by the testator.

Thus, if the testator explicitly disinherits the heir, this article will not apply.

Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share.

D. Effect of preterition.—

"Annul the institution of heir but devises and legacies shall be valid insofar as they are not inofficious." -- Abrogate, set aside, eliminate, cancel.

1. Effect of preterition (of parents) when there are no devises or legacies (Nuguid case)--

whole will is considered inexistent.

2. If there are devises or legacies.-- Set aside only the institution of heirs but not the

institution of devisees and legatees. If the devise and legacy exceed the free portion, decrease the devise and legacy.

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Solano v. CA.-- This case made a wrong decision. It made the effect of preterition the

reduction of the share of the instituted heir rather than annulling the whole institution of heir.

Acain v. IAC.-- This case restored the correct interpretation laid down in Nuguid that

preterition annuls the institution of heirs.

E.g., Testator has son, A. His will states "I give 1/2 of my estate to A and P300,000 to

N." The estate is worth P600,000. How much will each get? N gets 300,000. A gets the other

300,000. M gets nothing.

E. Criticism

1. Why not extend the application to the wife?

2. Why distinguish between heir and devisee and legatee?

NOTE: This is the only case where it is important to know the distinction between heir, on the one hand, and devisee and legatee on the other.

__________________________________________________

Rafael E. Maninang vs. Court of .Appeals, G.R. No. L-57848, June 19, 1982, 199 Phil 640

DIGESTED CASE: MANINANG vs. CA June 19, 1982

FACTS:

Clemencia, left a holographic will which provides that all her properties shall be inherited by Dra. Maninang with whose family Clemencia has lived continuously for the last 30 years. The will also provided that she does not consider Bernardo as his adopted son. Bernardo, as the adopted son, claims to be the sole heir of decedent Clemencia Aseneta, instituted intestate proceedings.

HELD:

In the instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's Will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid disinheritance. Preterition and disinheritance are two diverse concepts. Preterition consists in the omission in the testator's will of the forced heirs or

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anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited. Disinheritance is a testamentary disposition depriving any compulsory heirs of his share in the legitime for a cause authorized by law.

By virtue of the dismissal of the testate case, the determination of that controversial issue has not been thoroughly considered. The conclusion of the trial court was that Bernardo has been preterited. The SC is of opinion, however, that from the face of the will, that conclusion is not indubitable. Such preterition is still questionable. The Special Proceeding is REMANDED to the lower court .

________________________________________

DIGESTED CASE: MANINANG v CA (PRONOVE)

114 SCRA 478

MELENCIO-HERRERA; June 19, 1982

NATURE

A Petition to Review the Decision CA

FACTS

- Clemencia Aseneta, single, died and left a holographic will saying that all her real

properties located in Manila, Makati, Quezon City, Albay and Legaspi City and all her

personal properties shall be inherited by Dra. Soledad L. Maninang with whose family

she have lived with.

- Soledad Maninang filed a Petition for probate of the Will of the decedent with the CFI.

- Bernardo Aseneta, who, as the adopted son, claims to be the sole heir of decedent

Clemencia Aseneta, instituted intestate proceedings.

- The two cases were ordered consolidated.

- Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the holographic will was null and void because he, as the only compulsory heir, was

preterited and, therefore, intestacy should ensue.

- The lower Court ordered the dismissal of the Testate Case. MR denied. Maninang

resorted to a certiorari Petition before CA.

ISSUE

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WON the Court a quo a quo acted in excess of its jurisdiction when it dismissed the

Testate Case.

HELD

- YES. Generally, the probate of a Will is mandatory. Normally, the probate of a Will

does not look into its intrinsic validity.

- The Nuguid and the Balanay cases provide the exception rather than the rule. The

intrinsic validity of the Wills in those cases was passed upon even before probate

because "practical considerations" so demanded. Moreover, for the parties in the

Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in

fact, the parties in that case "shunted aside the question of whether or not the Will

should be allowed probate." Not so in the case before us now where the probate of the

Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will

demanded.

- Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid

as it completely preterited the parents of the testator. In the instant case, a crucial

issue that calls for resolution is whether under the terms of the decedent's Will,

private respondent had been preterited or disinherited, and if the latter, whether it

was a valid disinheritance. Preterition and disinheritance are two diverse concepts.

- By virtue of the dismissal of the Testate Case, the determination of that controversial

issue has not been thoroughly considered. We gather from the assailed Order of the

trial Court that its conclusion was that respondent Bernardo has been preterited We

are of opinion, however, that from the face of the Will, that conclusion is not

indubitable.

_________________________________________________________

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ARTICLE 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

Cuison vs. Villanueva, 90 Phil. 950

SUPPLEMENTAL NOTES:

Effect of Predecease. —

Under the law of testamentary succession, the general rule is that an heir who dies before the testator shall transmit no right to his own heirs. A distinction, however,

must be made between the case of a voluntary heir and the case of a compulsory heir. The rule is absolute with respect to a voluntary heir. It must be remembered that a voluntary heir is an heir who is called to the whole or to an aliquot part of the free portion of the inheritance by virtue of a will.46 Since the right of representation, by virtue of which

the representative is raised to the place and the degree of the person represented in case of either predecease or incapacity of the latter,47 is a right which pertains only to the legitime of compulsory heirs, it necessarily follows that when a person who has been instituted as

a voluntary heir dies before the testator, he can transmit no right whatsoever to his own heirs. The same is true in case a person has been designated as a devisee or a legatee with respect to a determinate property. Since a devise or legacy is a charge upon the free portion

of the inheritance, it necessarily follows that when the designated devisee or legatee dies before the testator, no right whatsoever is transmitted to the heirs of such devisee or legatee.It is different in the case of a compulsory heir. This is evident from the provision of the second paragraph of Art. 856. The exception referred to is of course the right of representation. It must be noted, however, that what is transmitted to the representatives

of the compulsory heir is his right to the legitime and not to the free portion in case he has also been instituted by the testator to the whole or to an aliquot part of such free portion. This is so, because of the principle that, in testamentary succession, the right

of representation pertains only to the legitime and not to the free portion.

The above rules may be illustrated by the following problems:

Problem No. 1 —

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A, a very wealthy man, executed a will wherein he instituted as his only heirs his three brothers, B, C and D without designating their shares. Before A died, both C and D were killed in a vehicular accident. C is survived by a son, E, while D is survived by two daughters, F and G. A died two days later without changing his will, survived only by B and the

children of C and D. The net value of his estate is P6,000,000.

How shall such estate be divided?

Answer — B alone is entitled to the entire estate. It must be noted that both C and D are voluntary heirs; they are not compulsory heirs. Consequently, they cannot transmit any right

to their own heirs (Art. 856, Civil Code). In other words, their children cannot inherit from the testator by right of representation.

It would have been different had A died intestate. In such a case, the children of C and D would then represent them in the succession (Arts. 972, 975, Civil Code). As it is, since A died testate and since both of the requisites prescribed by law for accretion to take place in testamentary succession are present, the shares of C and D, which were rendered vacant by reason of predecense, shall now pass to their co-heir B by right of accretion.

(Arts. 1015, et seq., Civil Code).

Problem No. 2 —

In his will, widower Kano instituted his only child Luis and a friend Mario as his heirs. Mario died ahead of Kano. If Kano dies without changing his will, would the children of Mario step into the shoes of their father and inherit from Kano? (1974 Bar Problem)

Answer —

The children of Mario cannot step into the shoes of their father and inherit from Kano; in other words, they cannot inherit from Kano by right of representation.

The following reasons are decisive:

(a) In testamentary succession, only a compulsory heir may be represented. Mario is not a compulsory heir; he is merely a voluntary heir whose share is chargeable against the free portion. Under the law, a voluntary heir who dies before the testator transmits nothing to his heirs (Art. 856, Civil Code).

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(b) The above case is one involving accretion and not representation.

It must be observed that had Mario survived the testator, Luis would have been entitled to his legitime of onehalf (1/2) of the hereditary estate in his capacity as compulsory heir and one-half (1/2) of the one-half (1/2) dis posable free portion in his capacity as voluntary heir; Mario, on the other hand, would have been entitled also to one-half (1/2) of the one-half

(1/2) disposable free portion as voluntary heir. But then, the latter died before the testator. Therefore, the provisions of the Civil Code on accretion (Art. 1015, et seq.) are applicable and not the provisions on representation (Art. 970, et seq.). Since the requisites of accretion in testamentary succession are present, Mario’s share shall now accrue to Luis.

__________________________________________________________________

Art. 857 - Substitution of heir

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

Testate Estate of Jose Eugenio Ramirez vs. Marcelle D. Vda. De Ramirez, G.R. No. L-27952, February 15, 1982

DIGESTED CASE: Succession Case#64 Testate Estate of Ramirez v. Vda de Ramirez

Facts:

Jose Eugenio Ramirez, a Filipino, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will which provided for substitutions 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 and she submitted an inventory of the estate.

Ramirez’s principal beneficiaries were as follows: (1) his widow Marcelle Demoron de Ramirez, a French who lived in Paris; (2) his two grandnephews Roberto and Jorge Ramirez; and (3) his companion Wanda de Wrobleski, an Austrian who lived in Spain.

Issue:

Whether or not the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal beneficiaries was correct.

Held:

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

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(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 who are the only relatives who are one generation or degree from the fiduciary.

(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."

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 because 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.

_______________________________________________________

DIGESTED CASE # 2: TESTATE ESTATE OF RAMIREZ vs. VDA. DE RAMIREZ

February 15, 1982

FACTS:

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The principal beneficiaries of Jose are his widow, his 2 grandnephews and his companion Wanda. The widow 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, a Filipino, died in Spain with only his widow as compulsory heir. A project partition was submitted wherein One part shall go to the widow and the other part or "free portion" shall go to the grandnephews. It was provided that 1/3 of the free portion is charged with the widow's usufruct and the remaining 2/3 with a usufruct in favor of Wanda.

The grandnephews opposed the project of partition and one of the grounds was that the provisions for fideicommissary substitutions are invalid because the first heirs are not related to the second heirs or substitutes within the first degree.

HELD:

The fideicommissary substitution is void. The substitutes are not related to Wanda. The second heir must be related to and be one generation from the first heir. It follows that the fideicommissary can only be either a child or a parent of the first heir. Therefore, 1/2 of the estate which is the free portion goes 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 substitutes.

________________________________________________________

DIGESTED CASE #3: Ramirez v. vda de Ramirez 111 SCRA 704; Feb. 15, 1982 J. Abad-Santos:

FACTS:

Jose Eugenio Ramirez [+], a Filipino national died in Spain on Dec. 11, 1964, with only his widow Marcelle Demoron [French] as compulsory heir. His will was admitted for probate. The administratrix Ma. Luisa Palacios submitted a project of partition which state as follows: . to widow Marcelle Demoron as legitime and . to Jorge and Robert Ramirez in which 1/3 of the same is subject to the widow’s usufruct (substitution in the person of Wanda de Wrobleski) and 2/3 of the same as usufruct in favor of Wanda de Wrobsleski, an Australian who live in Spain. Jorge and Robert opposed: (1) the provision on vulgar substitution in favor of Wanda with respect to the widow’s usufruct and in favor of Juan Pablo Jankowski and Horacio Ramirez, with respect to Wanda’s usufruct are invalid because the first heir survived the testator; (2) fideicommisary substitution is also void because 1st heir is not related to 2nd heir; (3) Art. III sec. 5. CFI approved the project of partition.

HELD:

(1) As to the widow’s legitime: . legitime is proper. But the 1/3 usufruct over the free portion should not be granted. The will contained such disposition, but her legitime was impaired by such disposition. So much so that the . legitime would be enough and give her more than her legitime will run counter to the testator’s intention for as stated, his disposition even impaired her legitime.

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(2) Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted- SIMPLE, BRIEF, RECIPROCAL, and FIDEICOMMICARY.

Dying before the testator is not the only case for VULGAR SUBSTITUTION for it also includes refusal or incapacity to accept the inheritance as provision in Art. 859 hence, vulgar substitution is valid. As to the substitution with respect to 1/3 of the widow, moot, as the widow is not entitled to usufruct. Fideicommisary substitution is void. The substitutes are not related to Wanda, the heir originally instituted. Art. 863 requires one degree from the heir originally instituted, so it’s either parent or a child of the 1st heir.

(3) What the 1935 Constitution prohibits is the vesting of the title to land in favor of aliens.

.- widows legitime

.- Roberto and Jorge- naked ownership. Wanda- usufruct with a simple substitution in favor of Juan Pablo and Horace.

Cases for Articles 857-870

DIGESTED CASE# 4:Ramirez v. Ramirez

- Jose Eugenio Ramirez, a Filipino national, died in Spain on Dec. 11, 1964 with his only his widow as compulsory heir.

- His will was admitted by the CFI and Maria Luisa Palacios was appointed administratrix of the estate. And she submitted an inventory of the estate. (look at the case for the inventory)

- The administratrix then submitted a project of partition. The property of the deceased shall be divided to two parts.

- One part shall go to the widow as part of her legitime; the other part or free portion shall go to Jorge and Roberto Ramirez. Furthermore, 1/3 of the free portion is charged with

the widow’s usufruct and the remaining 2/3 with a usufruct in favor of Wanda.

- Jorge and Roberto opposed the project of partition saying that:

(a) provisions for vulgar substitution in favor of Wanda with respect to the usufructs are invalid because the first heirs survived the testator;

(b) the fideicommissary substitutions are also invalid because 1st heirs not related to

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second heirs within the 1st degree;

(c) that the grant of the usufruct to Wanda violates the constitution.

- Notwithstanding their objections, the lower court approved the project of partition. Hence this appeal.

WON, the vulgar substitution in favor of Wanda in relation to the usufructs are void.

- No. With respect to the vulgar substitution in favor of Wanda in relation to the usufructs, the said substitutions are not void. Although, Wanda survived the testator or stated

differently because she did not predecease the testator, this does not avoid the substitution.

- 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.

- Hence the vulgar substitution is valid.

WON, the fideicommissary substitutions are valid.

- No. With respect to the fideicommissary, the appellants were correct in their claim that is void.

- The substitutes are not related to Wanda, the heir originally instituted. The Civil Code specifically provides that to be

valid, the substitution should not go beyond one degree from the heir originally instituted.

- Furthermore, there is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867.

- In fact, the testator contradicts the establishment of a fideicommissary substitution when he permits the proper subject of the usufruct to be sold upon mutual agreement of

the usufructuaries and naked owners.

WON, the grant of the usufruct to Wanda is void under the constitution.

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- No. With respect to the usufruct in favor of Wanda, 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 this case, no title vests upon Wanda.

- A vulgar substitution of heirs is valid even if the heir designated survives the testator; inasmuch as vulgar substitution can take place also by refusal or incapacity to

inherit of the first heir.

- A fideicommissary substitution is void if first heir is not related in the 1st degree to the 2nd heir.

- The constitutional provision which allows aliens to acquire lands by succession does not apply to testamentary succession.

- An alien may be bestowed usufructuary rights over a parcel of land in the Philippines.

___________________________________________________________

SUPPLEMENTAL NOTES:

SUMMARY: Ramirez v. Vda. De Ramirez

The deceased was survived by his spouse, 2 grandnephews, and his companion. The administrator submitted a partition to the court which divided the estate into 2: one-half would go to the widow in satisfaction of her legitime; the other half, which is the free portion, would go to the grandnephews; however, 1/3 of the free portion is charged with the widow’s usufruct and the remaining 2/3 with a usufruct in favor of the companion.

The grandnephews opposed the substitution on the ground that the 1st heirs are not related to the substitutes within the 1st degree.

SC ruled that the fideicommissary substitution is void. The substitutes (grandnephews) are not related to the companion within one degree.

In effect, the SC ruled that ―one degree‖ means ―one generation‖ and not ―one designation.‖ So, it follows that the fideicommissary can only be either a child or a parent of the 1st heir.

___________________________________________

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SUMMARY #2: RAMIREZ VS RAMIREZ 111 SCRA 704

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

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

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

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

remaining two-thirds (2/3) with a usufruct in favor of Wanda. Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's

usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code

;

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

2. It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of

the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

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

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

What is meant by "one degree" from the first heir is explained by

Tolentino as follows:

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

instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

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

5. There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the

properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

____________________________________________________

J. SUBSTITUTION OF HEIRS (ARTS 857-870) SUBSTITUTION

The act by which the testator designates the person or persons to take the place of the heir or heirs first instituted (Tolentino). It may be considered as a subsidiary and conditional institution.

Kinds:

1. Simple or Common (that which takes place when the testator designates one or more persons to substitute the heirs/s instituted in case such heir/s should die before him, or should not wish, or should be incapacitated to accept the inheritance)

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2. Brief or Compendious: brief (there are two or more persons designated by the testator to substitute for only one heir), compendious (one heir is designated to take the place of two or more heirs)

Instances when substitution takes place:

a. instituted heir predeceases the testator;

b. incapacity of the instituted heir to succeed from the testator; and

c. repudiation of the inheritance.

Effect of substitution:

General rule: once the substitution has taken place, the substitute shall not only take over the share that would have passed to the instituted heir, but he shall be subject to the same charges and conditions imposed upon such instituted heir.

Exceptions: (1) When the testator has expressly to the contrary; (2) When the charges or conditions are personally applicable only to the heir instituted.

3. Fideicommissary

Requisites:

a. First heir (fiduciary) called to the succession.

b. An obligation clearly imposed upon such first heir to preserve the property and to transmit it to the second heir.

c. Second heir (fideicommissary) to whom the property is transmitted by the first heir.

Without the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir, there is no fideicommissary substitution (Rabadilla vs. CA 334 SCRA 522)

NOTE: Pending transmission of property, the fiduciary is entitled to all the rights of a usufructuary, although the fideicommissary is entitled to all the rights of a naked owner.

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Limitations:

a. Substitution must not go beyond one degree from the heir originally instituted.

b. “Degree” means degree of relationship.

c. Fiduciary and fideicommissary must be living at the time of the death of the testator.

d. Substitution must not burden the legitime of compulsory heirs.

e. Substitution must be made expressly.

A fideicommissary substitution is void if the first heir is not related in the 1st degree to the second heir (Ramirez vs. Vda. De Ramirez 111 SCRA 704)

________________________________

What does the requirement “one degree” mean?

There is no question that only one transmission is allowed in fideicomisoria, from the first heir to the second heir. But, on top of that, does the term “one degree” mean that the second heir must be in the first degree of relationship with the first heir, as the word “degree” is used in Article 963, 964 and 966? In other words, must the second heir be either

a child or a parent of the first heir?

Yes, ruled the Supreme Court in Palacios vs. Ramirez, 111 SCRA 704. Manresa, Morell and Sanchez Roman construe the word “degree” as generation, and the present Code has

obviously followed this interpretation, by proving 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.

3. There is a second heir who must be one degree from the first heir.

a. "One generation." Does it refer to the degree of relationship or number of substitution? It refers to the degree of relationship. See Palacios v. Ramirez.

However, fideicommissary substitutions are also limited to one transmission. Upon the

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lapse of time for the first heir, he transmits the property to the second heir. They cannot be any more fideicommissary substitution coming from the same testator. In other words, there can only be one fideicommissary transmission such that after the first, there can be no second fideicommissary substitution.

Palacios v. Ramirez.-- In the case, 2/3 of the usufruct of the free portion was given to Wanda, w/ 2 other persons not related to her as her substitutes by way of simple and

fideicommissary substitution. Her grandnephews object on the ground that there could be no

fideicommissary substitution bec. the substitutes were not w/in one degree of each other. The SC agreed w/ the nephews. It said, quoting Tolentino, that one degree refers to one generation. As such, the fideicommissary can only be either a parent or child of the fiduciary.

4. The first and second heir must both be living and qualified at the time of the death of the testator.

a. From the moment of the death of the testator, the rights of the first and second heir are

vested. (look at Art. 866.)

b. Nature of right of first heir.-- Similar to usufruct.-- Possessory and enjoyment rights

w/o right to alienate.

If fiduciary is able to register the property in his name, fideicommissary should annotate

his claim on the land on the title to protect himself against any alienations in favor of innocent third parties.

Balane disagrees w/ Tolentino that there can be no successive fideicommissaries or several transmissions. If this is allowed, chaos will result if the fideicommissaries die. You will not know who will get the property and that the property may be tied up for centuries.

_______________________________________________________

Art. 858 (1) and (4) - Simple or common substition; fideicommissary substitution

ARTICLE 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary. (n)

Testate Estate of Jose Eugenio Ramirez vs. Marcelle D. Vda. De Ramirez, G.R. No. L-27952, February 15, 1982

( see Digest Case and Supplemental Notes above)

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Art. 859 - Substitution in case of predecease, renunciation or incapacity of heir

ARTICLE 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774)

Celsa L. Vda. De Kilayko vs. Ernesto Tengco, G.R. Nos. L-45425 & 65, March 27, 1992

DIGESTED CASE: Vda. de Kilayko vs. Tengco March 27, 1992

Facts:

In 1968, Maria Lizares died. She left a will to her niece Eustaquia Lizares. The court declared the will probated and appointed Eustaquia as the executrix of the estate of Maria. (The will was written in Spanish so I cannot make a summary.)

Eustaquia filed a project partition. Such partition was also granted by the probate court. The court then ordered the transfer of the properties to the heirs and the closure of the testate proceedings. (The heirs are the sisters and niece of Maria.)

After, Eustaquia filed a motion to reopen the testate proceedings in order that some properties of Maria which were not included in the partition be adjudicated to her. The court reopened the proceedings and adjudicated to Eustaquia all the properties which were not given by Maria to any person in her will.

Then, Eustaquia and the other heirs of Maria terminated their co-ownership over some parcels of land by executing an agreement of partition and subdivision of the lots. And then, Eustaquia died. She died single without any descendant.

Petitioners (sisters of Maria) filed a motion to reopen the testate proceedings of Maria. They were claiming that paragraphs 10 and 11 of the will of Maria, are in the nature of a simple substitution.

Court denied the motion to reopen and held that the settlement of an estate is a proceeding in rem and the judgment is binding against the whole world. Motion for reconsideration was denied.

Petitioners then filed a complaint for recovery of ownership and possession of real property against the administrators of the estate of Eustaquia.

Issue No. 1:

Are petitioners conditional substitute heirs of Eustaquia in the testate estate of Maria?

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Held No. 1:

NO. While the allegation of the joint administrators that paragraphs 10 and 11 of Maria Lizares' last

will and testament conceives of a fideicommissary substitution under Article 863 of the Civil Code is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve the estate in favor of the petitioners, neither may said paragraphs be considered as providing for a vulgar or simple substitution.

It should be remembered that when a testator merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code but it shall be effective only if the first heir dies before the testator. In this case, the instituted heir, Eustaquia, survived the testatrix, Maria Lizares.

Hence, there can be no substitution of heirs for, upon Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia by operation of the law of intestacy.

(Other issue)

Issue No. 2:

Can the petitioners still attack the project partition?

Held No. 2:

NO. In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted a project of partition in which the parcels of land, subject matters of the complaint for reconveyance, were included as property of the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia Lizares executed an Agreement of Partition and Subdivision whereby they agreed to terminate their co-ownership over Lots Nos. 550, . . . xxx . .. These facts taken altogether show that the Lizares sisters recognized the decree of partition sanctioned by the probate court and in fact reaped the fruits thereof.

Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him.

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Thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was affected through improper means or without petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the tenor of the partition. A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the

project of partition becomes irrelevant.

The only instance where a party interested in a 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.

__________________________________________________________

DIGESTED CASE 2: VDA. DE KILAYKO vs. JUDGE TENGCO March 27, 1992

FACTS:

In the settlement of the estate of Lizares, a project partition was submitted. In accordance with the said project of partition, the heirs executed an agreement of partition and subdivision. Later, a motion was filed to reopen the testate estate proceedings of Lizares.

HELD:

The testate proceedings cannot anymore be reopened because the Lizares sisters recognized the decree of partition sanctioned by the probate court and in fact reaped the fruits thereof. Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. In testate succession, there can be no valid partition among the heirs until after the will has been probated. A project partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto. It cannot be denied that when they moved for the reopening of the testate estate proceedings of Maria, the judicial decree of partition and the order of closure of such proceedings was already final and executory.

_________________________________________________

DIGESTED CASE #3: VDA. DE KILAYKO v TENGCO

207 SCRA 600

ROMERO; March 27, 1992

NATURE

Petition for certiorari and prohibition and/or mandamus with prayer for a writ of

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preliminary injunction.

FACTS

- Maria Lizares y Alunan died and left her "testamento" in the possession and custody

of her niece, Eustaquia Lizares, who later filed a petition for the settlement of her

estate. The probate court declared the will probated and appointed Eustaquia as the

executrix of the estate of Maria Lizares.

- Eustaquia filed a project of partition, which was granted by the probate court.

Simultaneously, said court declared the heirs, devisees, legatees and usufructuaries

mentioned in the project of partition as the only heirs, devisees, legatees and

usufructuaries of the estate; adjudicated to them the properties repectively assigned to them, and ordered the Register of Deeds to effect the corresponding transfer of

properties.

- Eustaquia filed an urgent motion to reopen the testate proceedings in order that

some properties of Maria Lizares which had been omitted in the partition be

adjudicated to her. The Court granted the motion and adjudicated to Eustaquia

certain shares of stocks, a revolving fund certificate, plantation credits and sugar

quota allocations, and real or personal properties of Maria Lizares which were not

given by her to any other person in her last will and testament. The heirs executed an

agreement of partition and subdivision, thereby terminating their co-ownership over

the inherited land.

- Eustaquia Lizares died single without any descendant. Rodolfo and Amelo Lizares

were appointed joint administrators of her intestate estate.

- On the strength of the testamentary provisions contained in pars. 10 and 11 of the

will of Maria Lizares, which were allegedly in the nature of a simple substitution, Celsa

L. Vda. de Kilayko, et al. filed a motion to reopen once again the testate estate

proceedings of Maria Lizares. They prayed among others that a substitute

administrator be appointed.

- The intestate heirs of Eustaquia opposed the motion, alleging that the court had no

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more jurisdiction to reopen the testate estate proceedings of Maria Lizares as the

order of closure had long become final and that the testamentary provisions sought to

be enforced are null and void.

- The Court denied the motion to reopen the testate proceedings.

- Celsa L. Vda. de Kilayko, et al. filed a complaint for recovery of ownership and

possession of real property against the joining administrators of the estate of

Eustaquia Lizares.

- The joint administrators filed the present petition. Petitioners contend, among

others, that the claim of petitioners over the properties left by their niece Eustaquia

and which the latter had inherited by will from Maria Lizares, was groundless because

paragraphs 10 and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et al. base

their claim, conceived of a fideicommissary substitution of heirs. Petitioners claim that

said provisions of the will are not valid because under Article 863 of the Civil Code,

they constitute an invalid fideicommissary substitution of heirs.

ISSUES

1. WON the independent action for reconveyance should prosper

2. WON petitioners are the conditional substitute heirs of Eustaquia in the testate

estate of Maria Lizares

HELD

1. NO

Ratio A final decree of distribution of the estate of a deceased person vests the title

to the land of the estate in the distributees. If the decree is erroneous, it should be

corrected by opportune appeal, for once it becomes final, its binding effect is like any

other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.

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Reasoning

- Any challenge to the validity of a will, any objection to the authentication thereof,

and every demand or claim which any heir, legatee or party interested in a testate or

intestate succession may make, must be acted upon and decided within the same

special proceedings, not in a separate action, and the same judge having jurisdiction

in the administration of the estate shall take cognizance of the question raised,

inasmuch as when the day comes he will be called upon to make distribution and

adjudication of the property to the interested parties.

- The facts show that the petitioners recognized the decree of partition sanctioned by

the probate court and in fact reaped the fruits thereof. Hence, they are now precluded

from attacking the validity of the partition or any part of it in the guise of a complaint

for reconveyance. A party cannot, in law and in good conscience be allowed to reap

the fruits of a partition, agreement or judgment and repudiate what does not suit him.

Thus, where a piece of land has been included in a partition and there is no allegation

that the inclusion was affected through improper means or without petitioner's

knowledge, the partition barred any further litigation on said title and operated to

bring the property under the control and jurisdiction of the court for its proper

disposition according to the tenor of the partition.

- Moreover, when petitioners. moved for the reopening of the testate estate

proceedings of Maria Lizares, the judicial decree of partition and order of closure of

such proceedings was already final and executory, then reglementary period of thirty

days having elapsed from the time of its issuance, with no timely appeal having been

filed by them.

- The only instance where a party interested in a 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. Even then,

the better practice to secure relief is the opening of the same by proper motion within

the reglementary period, instead of an independent action, the effect of which if

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successful, would be for another court or judge to throw out a decision or order

already final and executed and reshuffle properties long ago distributed and disposed

of.

2. NO

Ratio When a testator merely names an heir and provides that if such heir should die

a second heir also designated shall succeed, there is no fideicommissary substitution.

The substitution should then be construed as a vulgar or simple substitution under Art.

859 of the Civil Code but it shall be effective only if the first heir dies before the

testator.

Reasoning

- Although the testatrix intended a fideicommissary substitution in paragraphs 10 and

11 of her will, the substitution can have no effect because the requisites for it to be

valid, had not been satisfied. The allegation of the joint administrators that

paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a

fideicommissary substitution under Article 863 of the Civil Code is baseless as said

paragraphs do not impose upon Eustaquia a clear obligation to preserve the estate in

favor of Celsa L. Vda. de Kilayko, et al., neither may said paragraphs be considered as

providing for a vulgar or simple substitution.

- In this case, the instituted heir, Eustaquia, survived the testatrix, Maria Lizares.

Hence, there can be no substitution of heirs for, upon Maria Lizares' death, the

properties involved unconditionally devolved upon Eustaquia. Under the

circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia

by operation of the law of intestacy.

__________________________________

DIGESTED CASE #4: Kilayco v. Tengco GR No. 45965; March 27, 1992

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J. Romero:

FACTS:

Ma. Lizares died leaving a will in the possession of her niece Eustaquia Lizares. Eustaquia filed a petition for the settlement of the estate of Maria.the required publication has been made and the CFI ordered the probate of the will and appointed Eustaquia as executrix. The latter then filed for a project of partition which was granted by the court and declared the heirs, devises, legatees, and usufructuaries mentioned therein as the only heirs; adjudicated to them the property assigned to and every one of them ordered the Register of Deed to effect the corresponding transfer of title, as well as the corresponding transfer of shares, stocks and dividends.

Thereafter, Eustaquia filed a motion to reopen in order that some of the property of Maria which had been omitted in the partition be adjudicated to her. This was granted and the court adjudicated to her certain shares of stock, revolving funds certificate, plantation certificate, and sugar quota allocations and real/ personal properties which were not given by Maria in her last will and testament.

Then, the heirs of Maria executed a deed of partition, thereby terminating their co-ownership over four lots of the cadastral survey of Talisay.

Eustaquia died intestate. Herein petitioner, Celsa vda. de Kilayko [sister of Maria] et. al. filed a motion to reopen the estate of Maria alleging that paragraphs 10 and 11 of the will contains a simple substitution. This was denied by the court and held that settlement of the estate being in rem, is binding against the whole world. The motion for reconsideration

was likewise denied. Petitioners thereafter filed a complaint for recovery of ownership and possession against the administrator Eustaquia- lis pendens. The administrator of the estate of Eustaquia moved for dismissal alleging that the same was barred by prior judgment and for the cancellation of lis pendens. Granted.

Respondents alleged that claim of Celsa, Encarnacion and Remedios was goundless because paragraph 10 and 11 where they base their claim conceived of fideicommisary substitution. Petitioners however allege that it is an invalid fideicommisary substitution. It is only a conditional substitution.

HELD:

Dismissed. In testate succession, there can be no valid partition among the heirs until after the will has been probated.

The probate court in the exercise of its jurisdiction to distribute the estate has the power to determine the portion or parts to which each distribute is entitled. A project of partition is merely a proposal which a court may accept or reject. In this case, records shows that the property subject for recovery were included in the partition as property and assigned

exclusive to Eustaquia as a devisee. In accordance with such project of partition, the heir executed a deed of partition.

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The project of partition shows that the Lizares sisters recognized the decree of partition and in fact reaped the fruits thereof. They are therefore precluded from attacking the validity.

Assuming that they are not precluded or no res juridicata, paragraphs 10 and 11, wherein the testator merely names an heir and provides that if such heir should die and a second heir also designated shall succeed, cannot be considered as fideicommisary since no obligation is imposed upon Eustaquia to preserve the same. The substitution should them beconstrued as a VULGAR or SIMPLE SUBSTITUTION under Art. 859 but it shall be effective only of the first heir dies before the testator. In this case, Eustaquia survived the testatrix, hence no substitution. Thus, the property involved unconditionally devolved upon Eustaquia.

__________________________________________

Testate Estate of Jose Eugenio Ramirez vs. Marcelle D. Vda. De Ramirez, G.R. No. L-27952, February 15, 1982

( please refer to the digested case and Supplemental Notes above)

_______________________________________

Art. 863 - Fideicommissary substitution

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

____________________________________________

Perez vs. Garchitorena, 54 Phil 431

DIGESTED CASE: Perez vs. Garchitorena

Facts:

Plaintiff Carmen Perez is the sole heiress of Ana Maria Alcantara. The amount of P21,428.58 is on deposit in her name with La Urbana as the final payment of the liquidated credit of deceased.

As Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of Carmen, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana.

Carmen filed a petition for the issuance of a preliminary injunction alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara. Defendants contend that the plaintiff is the decedent's

universal heiress. CFI held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.

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The will provides the following clauses:

o Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, x x x I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, x x x, that she may enjoy them.

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

HELD:

Affirmed. Deposit held in trust for the fideicommissary.

The will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution, only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it.

It is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.

The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance.

The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution. In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on the second heir.

From the whole context it appears that in making the provisions, the testatrix had in mind a

fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible."

Such intention is also evident from the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs.

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

All the requisites of a fideicommissary substitution are present in the case:

1. A first heir primarily called to the enjoyment of the estate -- the plaintiff was instituted an heiress, called to the enjoyment of the estate.

2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate -- Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children"

3. A second heir -- the children of the heiress instituted

Finally, the requisite added -- that the fideicommissary or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator.

_______________________________

DIGESTED CASE #2: DE PEREZ v GATCHITORENA

54 Phil 431 ROMUALDEZ; February 13, 1930

NATURE

Appeal

FACTS

- Ana Maria Alcantara (deceased) left P21,428.58 on deposit in the Carmen's name

with the association known as La Urbana in Manila, as the final payment of her

liquidated credit against Andres Garchitorena, also deceased, represented by his son,

Mariano.

- Mariano Garchitorena held a judgment for P7,872.23 against Joaquin, husband of

Carmen. The sheriff pursuant to the writ of execution issued in said judgment levied

an attachment on said amount deposited with La Urbana.

- Carmen secured a preliminary injunction restraining the execution of said judgment

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on the sum so attached because the La Urbana deposit belongs to her children as

fideicommissary heirs of Ana Maria Alcantara.

-Pertinent clauses of the Will:

“Ninth. xxx… so that upon my death and after probate of this will, and after

the report of the committee on claims and appraisal has been rendered and

approved, she will receive from my executrix and properties composing my hereditary

estate, that she may enjoy them with God's blessing and my own.

Tenth. Should my heiress Carmen Garchitorena die, I order that my whole

estate shall pass unimpaired to her surviving children; and should any of these die,

his share shall serve to increase the portions of his surviving brothers (and sisters) by

accretion, in such wise that my estate shall never pass out of the hands of my heiress

or her children in so far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me

while her children are still in their minority, I order that my estate be administered by

my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and

in his default, by his son Ramon Salinas; xxx.”

-The appellants contend that in these clauses the testatrix has ordered a simple

substitution, while the appellee contends that it is a fideicommissary substitution.

ISSUE

WON a fideicommissary exists

HELD

YES. The requisites for a fideicommissary substitution exists, namely:

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff

was instituted an heiress, called to the enjoyment of the estate, according to clause IX

of the will.

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2. An obligation clearly imposed upon the heir to preserve and transmit to a third

person the whole or a part of the estate. Such an obligation is imposed in clause X

which provides that the "whole estate shall pass unimpaired to her (heiress's)

surviving children;" thus, instead of leaving the heiress at liberty to dispose of the

estate by will, or of leaving the law to take its course in case she dies intestate, said

clause not only disposes of the estate in favor of the heiress instituted, but also

provides for the disposition thereof in case she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are referred to as

such second heirs both in clause X and in clause XI.

4. The fideicommissarius be entitled to the estate from the time the testator dies,

since he is to inherit from the latter and not from the fiduciary. The children in this

case are the owners of the inheritance by virtue of the testatrix’s death. (TF, the

deposit cannot be the subject of execution by Garchitorena as it doesn’t belong to

Carmen.)

Reasoning:

-This will certainly provides for a substitution of heirs but not just a simple one

considering that clause XI in connection with clause X provides for a substitution

where the heiress instituted dies after the testatrix.

-Clause X doesn’t conflict with the idea of fideicommisary:

The word sole does not necessarily exclude the idea of substitute heirs; and

taking these three clauses together, such word means that the plaintiff is the sole

heiress instituted in the first instance.

The testatrix had in mind a fideicommissary substitution, since she limits the

transmission of her estate to the children of the heiress in accordance with the limits

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fixed by A 781 CC which prescribed that fideicommissary substitutions shall be valid

"provided they do not go beyond the second degree."

Another indication of fideicommissary substitution is this clause provides that

the whole estate shall pass unimpaired to the heiress's children, that is to say the

heiress is required to preserve the whole estate, without diminution, in order to pass it

on in due time to the fideicommissary heirs.

- The disposition contained in clause IX is not incompatible with a fideicommissary

substitution (it certainly is incompatible with the idea of simple substitution, where

the heiress instituted does not receive the inheritance):

In fact the enjoyment of the inheritance is in conformity with the idea of

fideicommissary substitution, by virtue of which the heir instituted receives the

inheritance and enjoys it, although at the same time he preserves it in order to pass it

on the second heir.

It should also be noted that said clause IX vests in the heiress only the right

to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does

not say she may dispose of it. This is an indication of the usufruct inherent in

fideicommissary substitution.

-Clause XI more clearly indicates the idea of fideicommissary substitution, when a

provision is therein made in the event the heiress should die after the testatrix. That

is, said clause anticipates the case where the instituted heiress should die after the

testatrix and after receiving and enjoying the inheritance.

_______________________________________________________________

DIGESTED CASE #3: PEREZ VS GARCHITORENA 54 PHIL 431

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

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

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

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

Issue:

whether such deposit belongs to the fideicommissary heirs.

Ruling:

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

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

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

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

by his son Ramon Salinas;

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

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

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

1. A first heir called primarily to the enjoyment of the estate.

2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate.

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

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(Emphasis ours.)

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

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

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

should die after the testatrix and after receiving and enjoying the inheritance.

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

SUPPLEMENTAL NOTES:

Requisites. — In order that there is a valid fideicommissary substitution, the following requisites must concur:

(1) There must be a first heir primarily called to the enjoyment of the estate.

(2) There must be a second heir.

(3) There must be an obligation clearly imposed upon the first heir to preserve the estate and to transmit it to the second heir.32

To the above requisites, a fourth is sometimes added that the second heir or fideicommissary should be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fi duciary. This is, however, not a requisite, but merely a consequence of the substitution.

Idem; Preservation of inheritance. —

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Although the first heir or fiduciary is a true heir of the testator, his rights as such over the property which is transmitted to him upon the death of the testator is necessarily limited by his obligation to preserve the said property.

The obligation to preserve excludes the right to dispose the property either by an act inter vivos or an act mortis causa. As Scaevola says, “the fi duciary heir has all the qualities of a usufructuary, but he also has those of an absolute owner, without the power of alienation?48

However, he may alienate his right of usufruct over the property. Corollary to the obligation, of the fiduciary heir to preserve is the obligation to make an inventory. Art. 865, par. 2, impliedly recognizes this obligation, since it would be impossible for the fiduciary to make the necessary deductions for legitimate expenses, credits and improvements once the property is delivered to the fideicommissary unless there had been a previous inventory.

Rights of Fideicommissary. —

The provisions of Art. 866 of the Code decides once and for all the question as to whether the fideicommissary is an heir of the fi duciary or of the fi deicomitente. Under this article, the second heir or fi deicommissary inherits, not from the fi rst heir or fi duciary, but from the testator or fi deicomitente. As a matter of fact, in a decision of the Spanish Supreme Tribunal,52 the provision of this article was included as a requisite of fi deicommissary substitutions. The Supreme Court of the Philippines in Perez vs. Garchitorena,53 however, rightly observed that the fact that the fi deicommissary is entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fi duciary, is a natural consequence of a fi deicommissary substitution rather than a requisite.

What is the nature a the right of the fi deicommissary heir pending the delivery or transmission of the property or inheritance?

It is evident from the provision of Art. 866 that he acquires a right to the inheritance from the moment of the death of the testator. It must be noted, however, that this right is subject or without prejudice to the corresponding right of the fi duciary heir. Stated in another way, if the fi duciary is entitled to all of the rights of a usufructuary, the fi deicommissary is also entitled to all of the rights of a naked owner. Thus, if the testator designates A and B as the fi duciary and fi deicommissary heirs, respectively, of his entire state, imposing the obligation upon A to preserve and to transmit the entire estate to B after the expiration of ten years, there is no question that the latter shall be entitled to the entire estate from the moment of the death of the testator. If he dies before the expiration of the period and before the death of the fi duciary, his right to the estate shall be transmitted to his own heirs.

Problem — X died in 1960 leaving a will wherein he devised a house and lot, now valued at P2,000,000, to his friend, A, as fi duciary heir and to B, the eldest son of A, as fi deicommis sary substitute or second heir. B died in 1975, survived by two legitimate children, E and F. In 1980, A died intestate survived by: (a) his two sons, C and D, and (b) his two grandchildren, E and F. C and D now claim that the house and lot (subject

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matter of the fi deicommissary substitution) should be divided in accordance with, the rules of intestacy; in other words, C is entitled to 1/3 of the property; D, to 1/3; and E and F, also to 1/3 by right of representation. E and F, on the other hand, contend that they are entitled to the property to the exclusion of all others.

Decide.

Answer —

E and F are correct. It must be observed that B, as fi deicommissary substitute or second heir, acquired a right to the subject property upon the death of the testator, X. This is ordained by Art. 866 of the Civil Code. When he died in 1975, this right passed to his children, E and F. This is also ordained by Art. 866 of the Civil Code. Therefore, E and F are now entitled to the subject property to the exclusion of all others. When the fi deicommissary substitution is conditional, however, the fi deicommissary heir has only a mere hope or expectancy. Consequently, if the fi deicommissary dies before the condition has been fulfi lled, he acquires no right to the object of the fi deicomisum, and, as a consequence, he transmits no right whatsoever to his own heirs.

____________________________________________

Testate Estate of Jose Eugenio Ramirez vs. Marcelle D. Vda. De Ramirez, G.R. No. L-27952, February 15, 1982 (see above digested case and supplemental notes)

_____________________________________________

Ramona B. Vda. De Aranas vs. Vicente B. Aranas, G.R. No. L-56249, May 29, 1987

DIGESTED CASE: Vda. de Aranas v. Aranas

G.R. No. L-56249, May 29, 1987

Paras, J.:

FACTS:

Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died. He had executed his Last Will and Testament which was admitted to probate. In said Last Will and Testament, Fr. Teodoro Aranas stipulated the following:

A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Aniceto Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents.

B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Carmelo Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents.

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C. The special administration of the remainder of the estate of the testator by Vicente Aranas, a faithful and serviceable nephew and designating him also as recipient of 1/2 of the produce of said properties after deducting the expenses for the administration and the other 1/2 of the produce to be given to the Catholic Church for the eternal repose of the testator’s soul. Said pertinent provision reads as follows:

Fourth. It is my will that the lands I had bought from other persons should be converged and placed under a “special administrator.” The special administrator of these lands, for his office, should receive one half of all the produce from which shall be deducted the expenses for the administration, and the other half of the produce should be received by the Roman Catholic Church and should be spent for my soul, Vicente B. Aranas (Tingting), because he is a faithful and serviceable nephew, should be the first special administrator of said properties, without bond, until his death or until he should not want to hold the said office anymore. Anyone of the sons of my brother Carmelo Aranas can hold the said office of special administrator, and none other than they. Their father, my brother Carmelo Aranas shall be the one to decide who among them shall hold the said office, but upon the death of my said brother Carmelo Aranas, his said sons will have power to select the one among them ourselves. The special administration is perpetual.

ISSUE:

whether or not the properties under Group C of the testate estate of the late Fr. Teodoro Aranas are subject to remunerative legacies by way of usufruct of the net proceeds of 1/2 of the estate after deducting expenses for administration in favor of Vicente Aranas, during his lifetime and shall continue an administrator of the estate, and, who, upon his death or refusal to continue such usufruct, may be succeeded by any of the brothers of the administrator as selected by their father, Carmelo Aranas, if still alive or one selected by his sons if, he, Carmelo, is dead

HELD:

Yes. It was the sincere intention and desire of the testator to reward his nephew Vicente Aranas for his faithful and unselfish services by allowing him to enjoy one-half of the fruits of the testator’s third group of properties until Vicente’s death and/or refusal to act as administrator in which case, the administration shall pass to anyone chosen by Carmelo Aranas among his sons and upon Carmelo’s death, his sons will have the power to select one among themselves. Vicente Aranas therefore as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another’s property, with the obligation to return, at the designated time, either the same thing, or in special cases its equivalent. This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente Aranas prohibited from disposing of said naked ownership without prejudice of course to Vicente’s continuing usufruct.

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________________________________________________

DIGESTED CASE: Arañas v. Arañas

FACTS:

- Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953. He had executed on June 6, 1946 his Last Will and Testament which was admitted to probate

on August 31, 1956.

- In said Last Will and Testament, Fr. Teodoro Aranas directed that certain properties acquired by him during his lifetime be given to his brothers Aniceto and Carmelo.

- He likewise appointed as special administration of the remainder of the estate Vicente Aranas, a faithful and serviceable nephew, and designated him also as recipient of

1/2 of the produce of the properties (those parcels of land to be given to Fr. Aranas’ brothers) after deducting the expenses for the administration and the other 1/2 of the

produce to be given to the Catholic Church for the eternal repose of the testator's soul.

- Vicente’s right to enjoy the fruits of the property was to end upon his death or his refusal to act as administrator.

- Herein Petitioners challenged the validity of the disposition, relying on Art. 870, which provides: “The dispositions of the testator declaring all or part of the estate inalienable for

more than twenty years are void.”

Is the disposition in favor of Vicente valid?

- YES. Vicente Aranas as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another's

property, with the obligation to return, at the designated time, either the same thing, or in special cases its equivalent.

- This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as

administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code.

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- Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente prohibited from disposing of said naked ownership without prejudice of course to Vicente's continuing usufruct.

- To void the designation of Vicente as usufructuary and/or administrator is to defeat the desire and the dying wish of the testator to reward him for his faithful and unselfish

services rendered during the time when said testator was seriously ill or bed-ridden.

- The proviso must be respected and be given effect until the death or until the refusal to act as such of the instituted usufructuary/administrator, after which period, the property

can be properly disposed of, subject to the limitations provided in Art. 863 of the Civil Code concerning a fideicommissary substitution.

- Article 863: "A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the

whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided

further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator."

___________________________________________________________________

SUPPLEMENTAL NOTES:

Vda. De Aranas vs. Aranas

Petitioners were assailing the stipulation in the will which provided that the testator’s nephew shall have usufructuary rights and be the first administrator of certain properties; and that upon his death or refusal to continue to act as usufructuary/administrator, the administration shall pass to the anyone of the sons of his brother. Petitioners contended that this violated Art. 870, CC.

SC ruled that there was a limitation to the right of the nephew, namely his death or his refusal. The disposition must be respected & given effect. Upon the death or refusal of the nephew, the property can be disposed of subject to the limitations provided in Art. 863 concerning fideicommissary substitution.

___________________________________________________________

ARTICLE 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.

" Ramona B. Vda. De Aranas vs. Vicente B. Aranas, G.R. No. L-56249, May 29, 1987

( refer to the case above)

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_______________________________________________________

Art. 871

SECTION 4 Conditional Testamentary Dispositions and Testamentary Dispositions With a Term

ARTICLE 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)

Natividad vs. Gabino, 36 Phil 663

DIGESTED CASE: Natividad v. Gabino

Facts:

This is a case involving the proceedings in the partition of an estate. Testator Tiburcio Salvador Reyes contracted a valid marriage with Anselma Nicasio, who died in 1868, leaving a daughter named Higinia who married Clemente Natividad. Higinia died in 1913 and was survived by Emilio and Purificacion. Tiburcio disposed of all his properties

in the manner recorded in the will executed in legal form on November 9, 1914 instituting as sole heirs Emilio and Purificacion. The sixth clause stated she will bequeath to Dona Basilia Gabino ownership of an urban property with the condition that should the legatee die, Lorenzo Salvador shall be obliged to deliver this house and lot to Emilio upon payment of the latter of 4,000 pesos. In other words the sixth clause was itself a right of usufruct.

Gabino then opposed the approval of the proposed partition with the adjudication of usufruct only and instead wants ownership over the property. The judge issued the amendment to the partition. An appeal was taken by counsel for the executor.

Issue:

What construction must be be given to the above-quoted sixth clause of the will executed by Tiburcio Salvador?

Ruling:

Affirmed.

A person is entirely free to make his will in manner he pleases. He may impose conditions, either with respect to the institution of heirs or the designation of legatees, and when the conditions imposed upon the former or the latter do not fall under the Civil Code, they shall be governed by the rules on conditional obligations.

All conditions imposed in a will must be observed in accordance with the express wishes of the testator, if they are neither impossible to fulfill and not contrary to law and morality.

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The condition imposed by the testator in the double legacy mentioned depends upon the happening of the event constituting a condition, to wit, the death of the legatee Gabino, a perfectly legal condition according to Article 1114 of the Civil Code, as it is not impossible of performance and is not contrary to law or public morals.

Therefore the moment legatee dies, Lorenzo Salvador is obliged to deliver the property to the heir Emilio Natividad, who in turn must pay the legatee the sum of 4,000 pesos to fulfill the condition imposed on the will.

_________________________________________________

[The condition can be imposed only on the free portion, never on the legitime. (Art. 904, Civil Code).].

Natividad v. Gabino

36 Phil. 663

FACTS:

A testator in his will stated: “I bequeath to Doña Basilia Gabino the ownership and dominion of the urban property, consisting of a house and lot situated on Calle Lavezares.

If the said legatee (devisee) should die, Lorenzo Salvador shall be obliged to deliver this house, together with the lot on which it stands, to my grandson Emilio Natividad, upon payment by the latter to the former of the sum of four thousand pesos Phil ippine currency.” When may Lorenzo Salvador get his legacy of P4,000?

HELD:

Salvador will get his legacy the moment Gabino

dies, because then Salvador will be obliged to deliver the property

to Natividad who in turn and in exchange must pay him

(Salvador) P4,000. Salvador’s legacy is conditional, and as soon

as the condition is fulfi lled, he acquires it.

_______________________________________________________________

DIGESTED CASE #2: Natividad v. Gabino

36 Phil 663; March 31, 1917

J. Torres:

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FACTS: +1867

+1867

Tiburcio ♥Anselma Nicasio

++1913

Higinia ♥ Clemente Natividad -Emilio Purificacion

Tiburcio Salvador executed a notarial will and instituted his grandchildren Emilio and Purificacion as sole heirs. However, clause six is as follows: “I bequeath to Basilia Gabino, the ownership and dominion of the urban property, consisting of a house and lot in Calle Lavezares… If the said legatee should die, Lorenzo Salvador shall be obliged to deliver the same to my grandson Emilio, upon payment of the latter to the former P4,000.00. Executor Emilio presented a project of partition wherein it was stated therein that the clause six should be interpreted as giving the right of usufruct only to Basilia, and a general legacy in favor of Lorenzo Salvador of P4,000 whenever Basilia should die, but that the ownership

belongs to Emilio. Basilica, though counsel, opposed claiming ownership over the legacy. CFI- ownership and dominion should be given to Basilia, subject to reservation mabe in behalf of Lorenzo and Emilio.

HELD: Affirmed. A person is entirely free to make his will in such a manner as may best please him provided the testamentary provision conform to law and meet its requirements. The testator may impose a condition in his will touching either the institution of heirs or the designation of legatees. And when the condition imposed upon the latter do not fall

with the provision of the articles of the CC relative to heirs and legatees, such conditions shall be governed by the rules for conditional obligation. Double legacy: condition: depends upon the happening of the event constituting the condition- death of the legatee Basilia, a perfectly legal condition as it is not impossible of performance and is not contrary to law or public morals. 1st legacy: voluntary reservation to Basilia of the ownership. 2nd legacy: conditional legacy of P4,000 to Lorenzo. Testator provided in his will that the dominion [ownership and possession shall be delivered to Basilia subject to the condition that upon her death it would revert to testator’s grandson, provided the latter pays P4,000 to Lorenzo. It cannot be understood that the legacy covered on the usufruct because the plain and literal meaning of the words employed by the testator clearly shows beyond all doubt the express wishes that the legatees right of dominion should end at her death.

___________________________________________

DIGESTED CASE#3: Natividad v. Gabino

Facts:

Testator, Tiburcio Salvador, designated Basilia Gabino

as a legatee. The condition was that if the legatee should die,

Lorenzo Salvador, the successor of Gabino, would be obliged,

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upon payment of 4,000 by the testator’s grandson, Emilio

Natividad, to convey the property to the latter.

Issue:

WON the condition makes Gabino a mere ususfructuary

Held:

No, this was a double legacy of full ownership, subject to a condition which depended on the happening of the event constituting the condition, i.e., the death of Gabino. The testator intended that Gabino enjoy ownership of the property during her lifetime, such testamentary provision is not contrary to law, for it was the intention of the testator to have the property reverted to his lawful heir Emilio upon payment.

_____________________________________________________

Art. 873

ARTICLE 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a)

Miciano vs. Bnmo, 50 Phil 867

DIGESTED CASE:Miciano vs Brimo

TITLE: Juan Miciano v Andre Brimo

CITATION: GR No.22595, November 1, 1927| 50 Phil 867

FACTS:

Juan Miciano, judicial administrator of the estate in question, filed a scheme of partition. Andre Brimo, one of the brothers of the deceased (Joseph Brimo) opposed Miciano’s participation in the inheritance. Joseph Brimo is a Turkish citizen.

ISSUE: Whether Turkish law or Philippine law will be the basis on the distribution of Joseph Brimo’s estates.

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HELD:

Though the last part of the second clause of the will expressly said that “it be made and disposed of in accordance with the laws in force in the Philippine Island”, this condition, described as impossible conditions, shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. Impossible conditions are further defined as those contrary to law or good morals. Thus, national law of the testator shall govern in his testamentary dispositions.

The court approved the scheme of partition submitted by the judicial administrator, in such manner as to include Andre Brimo, as one of the legatees.

____________________________________________

Supplemental notes:

Miciano vs. Brimo

Testator is a Turkish national who stated in his will that the institution of legatees therein is conditional insofar as the said legatees must respect the testator’s will to distribute his property in accordance with the laws of the Philippines. SC ruled that this condition is void because it is contrary to law. Under the old civil code, the national law of the testator should govern his testamentary dispositions.

Law Which Governs Intrinsic Validity of Wills. —

The intrinsic validity of wills is governed by the national law of the person

whose succession is under consideration. This is the precept or principle which is enshrined in the second paragraph of Art. 16 of the Civil Code. According to this provision, “intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein

said property may be found.

(b) INTRINSIC VALIDITY

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1) From the viewpoint of TIME — successional rights are governed by the law in force at the time of the DECEDENT’S DEATH. (See Art. 2263).

2) From the viewpoint of PLACE or COUNTRY — the national law of the decedent, that is, the law of his country or nationality (Art. 16) — regardless of the place of execution or the place of death. (See Miciano v. Brimo, 50 Phil. 867). Thus, a proviso in the will of an alien to the effect that his properties should be distributed in accordance with internal Philippine

law, and not in accordance with his own national law, is void because said proviso contravenes Art. 16, par. 2 of the Civil Code. (Bellis v. Bellis, L-23678, June 8, 1967). However, if the confl ict rules under the national law of the deceased refer the matter to

the law of the domicile and the foreigner was domiciled in the Philippines at the moment of death, our courts will have to apply the Philippine internal law on succession. (See Testate Estate of Christensen, L- 16759, Jan. 31, 1963). (This is an instance where we ACCEPT THE RENVOI which is the referring back to the forum of the problem.)

(7) Example Illustrating the Rule on Intrinsic Validity from

the Viewpoint of Place or Country

(a) A Turk executed in the Philippines a will, observing Philippine laws. In the will, he stated that he wanted his estate distributed in accordance with Philippine law on succession. Is the provision valid?

HELD:

The provision is void, because the estate must be distributed in accordance with the laws of his country, Turkey, and not the law of the Philippines. Art. 16 provides: “Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary succession, both with respect to:

1) the order of succession

2) the amount of successional rights

3) and the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property, and regardless of the country wherein said property may be found.’’ (See Miciano v. Brimo, 50 Phil. 867). (Query: Suppose Turkish law allowsthe distribution of the property in accordance with Philippine law, would the decision still be the same?).

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It has been pointed out by the oppositor that the decedent executed two wills — one to govern his Texas estate and the other his Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent’s intention in executing a separate Philippine will, it will NOT ALTER the law, for as

this Court ruled in Miciano v. Brimo, 60 Phil. 867, 870, a provision in a foreigner’s will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law, in this regard, cannot be ignored.

Query on Effect of Foreign Probate

If a will is probated abroad, does it have to be probated again in the Philippines?

ANS.:

In one sense, there is no need of an ordinary or usual probate here. What is required however is that there must be a proceeding here to prove that indeed the will had

already been probated abroad. In other words, the rule is the same as in proving the existence of a foreign judgment. (See Yu Chengco v. Tiaoqui, 11 Phil. 598).

[NOTE:

Of course, if the foreign will has not yet been probated abroad, a probate must be had here, and this time proof must be presented that indeed the will had been executed in accordance with the law established in said foreign country.

(Art. 815; See Yu Chengco v. Tiaoqui, 11 Phil. 598). In such a case, there is naturally no necessity of showing that a previous probate had been had abroad. (Dalton v. Giberson, L-4113, June 30, 1962).].

[NOTE: It should be observed that in the absence of contrary proof, foreign laws on the formalities of a will are presumed to be the same as those existing in the Philippines.

(Miciano v. Brimo, 50 Phil. 867). It has also been held that if there is no proof regarding the foreign law of probate procedure and no proof that the foreign court that approved the will is indeed a probate court, it will be presumed that the proceedings in the matter of probate in said court are the same as those provided for under Philippine laws. (Testate Estate of Suntay, L-3087, July 31, 1964).].

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[NOTE: What have been said here about the probate of foreign wills are applicable also to those referred to under Arts. 816 and 817, respectively.].

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(3) Example of a Condition Contrary to Law

A instituted B as his heir provided that B kills C. If B does not kill C, B inherits notwithstanding any contrary provision in A’s will. The condition here is contrary to law.

SUMMARY: Miciano v. Brimo 50 Phil. 867

FACTS:

Joseph G. Brimo’s will provided that even if he was a Turk, still he wanted his estate disposed of in accordance with Philippine laws; and that should any of his legatees oppose

this intention of his, his or her legacy would be cancelled. Andre Brimo, one of the brothers of the deceased, did not want this disposition in accordance with Philippine laws, and so he

opposed practically every move that would divide the estate in accordance with Philippine laws. Issue: Does Andre Brimo lose his legacy?

HELD:

No, Andre Brimo does not lose his legacy, because the condition, namely, the disposal of the testator’s estate in accordance with Philippine law, is against our laws which provide that “intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions,

shall be regulated by the national law (Turkish law) of the person whose succession is under consideration whatever may be the nature of the property and regardless of the country

wherein said property may be found.” (2nd paragraph, Art. 16). The condition being disregarded, the legacy becomes unconditional, and therefore Andre Brimo is entitled to his legacy.

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Topic: Testamentary Succession – Wills in General (Article 792)

(15) Miciano v. Brimo G.R. No. 22595, November 1, 1924

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Facts:

Joseph Brimo, a Turkish national, died testate.

He placed as a condition in his will that it be disposed of in accordance with the laws in force in the Philippine

Islands, it states: “…it is my wish that the distribution of my property and everything in connection with this,

my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all

of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this

will favorable to the person or persons who fail to comply with this request.”

Article 10 of the Civil Code of the Philippines it provides that :

o “…legal and testamentary succession as well as the amount of the successional rights and the intrinsic

validity of their provisions, shall be regulated by the national law of the person whose succession is

in question, whatever may be the nature of the property or the country in which it may be situated.”

Partition of the estate left by the deceased Joseph Brimo is in question in this case.

The judicial administrator of the estate filed a scheme of partition.

Andre Brimo, one of the brothers of the deceased, opposed it.

o His opposition was based on the fact that the partition in question puts into effect the provisions of Joseph Brimo’s will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation of Article 10 of the Civil Code.

Issue:

W/N the dispositions in the will remains valid despite the condition in the will which is in violation of Article 10 of the Civil Code.

Held:

YES!

Although the condition is void being contrary to law, according to Article 792 of the Civil Code the said condition will just be considered not imposed and shall not prejudice the heir or legatee in any manner even if the testator otherwise provide.

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The said condition is contrary to law because it expressly ignores the testator’s national law when, according to Article 10 of the CC above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said Condition then, in the light of the legal provisions above cited, is considered unwritten and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator’s national laws.

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LAW ON INTRINSIC VALIDITY:

ARTICLE 16.

Real property as well as personal property is subject to the law of the country where it is situated. iatdc2005 However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

MICIANO vs. BRIMO 50 PHIL 867

FACTS:

A will of an American testator provided that his estate should be disposed of in accordance with the Philippine law. The testator further provided that whoever would oppose his wishes that his estate should be distributed in accordance with Philippine laws would forfeit their inheritance

HELD:

Even if the testator‘s wishes must be given paramount importance, if the wishes of the testator contravene a specific provision of law, then that provision in a will should not be given effect. A person‘s will is merely an instrument which is PERMITTED, so his right is not absolute. It should be subject to the provisions of the Philippine laws. The estate of a decedent shall be distributed in accordance with his national law. He cannot provide otherwise. The SC held that those who opposed would not forfeit their inheritance because that provision is not legal.

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ON ART. 817

MICIANO vs. BRIMO November 1, 1924

FACTS:

The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality. The will provided that his property be disposed of in accordance with the laws in the Philippines. Otherwise, if relatives does not respect such wish, any disposition favorable tot them shall be annulled.

HELD:

The Turkish laws should be followed. However, the oppositor did not prove that said testamentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines, following the DOCTRINE OF PROCESSUAL PRESUMPTION. It has not been proved in these proceedings what the Turkish laws are. It should be noted that the condition stated in the will is contrary to law because it expressly ignores the testator's national law when such national law of the testator is the one to govern his testamentary dispositions. Said condition is considered unwritten.

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Case for Arts 871-885

Miciano v. Brimo

- The subject of this case is the partition of the estate of the late Joseph Brimo.

- Miciano, the appointed judicial administrator, filed a partition scheme.

- Andre Brimo, one of Joseph’s borthers, opposed stating that the partition was not in accordance with Turkish laws, Jospeh being a Turkish citizen.

- Andre contends that this was void because the Civil Code states that legal and testamentary successions shall be governed by the national law of the person whose

succession is in question.

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- Andre was excluded from as a legatee because of a clause in the will where Joseph wished that his property be distributed in accordance with Philippine laws, and any legatee who fails to comply with this would be prevented from receiving his legacy.

- Since the institution of legatees was conditioned upon Joseph’s wish, it is claimed that Andre is excluded by questioning the validity of applying Philippine laws in the partition of the estate (which was against his brother’s wish).

ISSUE: WON Andre Brimo can be validly excluded as a legatee.

- NO. The condition imposed by the will of the testator is contrary to law because it ignores the testator’s national law, when according to the Civil Code, such national law of the testator is to govern his testamentary dispositions.

- As such, the condition is considered unwritten and the institution of legatees in the will is unconditional and consequently valid and effective even as to Andre.

- The remaining clauses of the will are valid despite the nullity of the clause stating that the testator’s testamentary dispositions be governed by Philippine laws.

- Art. 792, (Old) Civil Code: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any

manner whatsoever, even should the testator otherwise provide.

- An impossible condition is one that is contrary to the laws of nature, contrary to law or good customs; and if provided for in the will, they shall be considered as not

imposed and will not prejudice the heir even though the testator should provide otherwise.

- The will of the testator should not be divided by maintaining valid his disposition even if the condition on which it was made to depend on the disposition is not complied with, since both constitute and indivisible whole.

Miciano v. Brimo

Facts:

Joseph Brimo, a Turkish citizen who took residence in the Philippines. His will provided that the distribution of his property be made in accordance with Philippine law. He added that his relatives respect his wishes otherwise any disposition in their favor is deemed annulled. Andre, his brother, opposed the partition of his estate.

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Issue:

WON the condition is valid.

Held:

No, the condition is void because it is contrary to law and is therefore deemed not imposed. Art. 16 states that the national law of the testator shall be the one which governs his

testamentary dispositions. Such condition is deemed unwritted, and the institution of legatees is unconditional and consequently valid and effective against herein oppositor.

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Art. 874

ARTICLE 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a)

DIGESTED CASE: Morente v. dela Santa

FACTS

Consuelo Morento made a will that had several clauses. First, it bequeathed all her real estate to her husband, Gumersindo de la Santa. Second, it provided that he should not leave her siblings or marry another. Third, it also directed her husband to dwell in the camarin in the bakery also belonging to her. In addition, if Gumersindo should have other children by anyone, he may only convey one-third part of that property and the two remaining thirds

would be for her brother Vicente or his children should he have any. Her husband, Gumersindo de la Santa, married again within four months of the death of the testatrix. Elena Morente, a sister of the deceased, filed a petition asking that the legacy to him be annulled. The court denied the petition; in the decision the court said, that the husband having married, had the right to the use of all the property during his life and that at his death two-thirds thereof would pass to Vicente, a brother of the testatrix, and one-third thereof could be disposed of by the husband. Elena brought this issue to court, claiming that by the mere act of marriage the husband at once lost all rights acquired by the will.

ISSUE

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WON Gumersindo lost all rights to his wife’s real estate upon his subsequent marriage

HELD

NO. Judgment of that court denying the petition is affirmed. Article 790 of the Civil Code provides that testamentary provisions may be made conditional and article 793 provides that a prohibition against another marriage may in certain cases be validly imposed upon the widow or widower. It is to be observed that by the second clause she directs that her husband shall not leave her sisters. It is provided in the third clause that he must continue to live in a certain building. It is provided in the second clause that he shall not marry again. To no one of these orders is attached the condition that if he fails to comply with them he shall lose the legacy given to him by the first clause of the will. Therefore the intention of the testatrix cannot be construed as wanting to forfeit the legacy if her husband married again. There being no express condition attached to that legacy in reference to the second marriage, no condition can be implied from the context of the will. In order to make a

testamentary provision conditional, such condition must fairly appear from the language used in the will.

But it is expressly provided that if one event does happen the disposition of the property contained in the first clause of the will shall be changed. It is said that if he has children by anyone, two-thirds of that property shall pass to Vicente, the brother of the testatrix. However, this has not been alleged in the present case.

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DIGESTED CASE #2: 9 Phil 387; December 19, 1907

FACTS:

Consuelo Morente died leaving a will which states that (1) all her real setate shall pass to her husband, Gremersindo dela Santa; (2) that the husband shall not leave her brother after her death and not he shall not marry anyone; should he have children by anyone, he shall not convey any portion of the property except 1/3 thereof and 2/3 should be given to her brother Vicente or his children if any; (3) after her death, husband should live in which the bakery

id located. Four months after her death, Gremersindo married again. Elena Morente, sister of the testatrix filed a petition in the probate alleging 2nd marriage of Gremersindo and asked for the annulment of the legacy. The CFI denied the petition.

HELD:

Affirmed.

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Testamentary provision made conditional and prohibitive against another marriage may be valid against a widow or widower.

However, under the will of the testatrix, there are several directions given to the husband, but no one of these orders is attached that condition that he fails to comply with them, he shall lose the legacy. It is only in one event- having children the disposition will change. The will should be construed with reference to all the clauses and with reference to such surrounding circumstances. There being no express condition attached to the legacy in reference to the second marriage, there can be no implied condition from the context of the will. In order to make a testamentary provision conditional, such condition must fairly

appear from the language used in the will.

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CASE DIGEST# 3: Morente v. De la Santa

Facts:

The testatrix, Consuelo Morente, left all her real property to her husband, Gumersindo de la Santa. The 2nd clause provided that the husband shall not leave her brothers after her deathm and he shall not marry anyone; should he have children by anyone, he shall not convey any portion of the property left by her, except 1/3 thereof, the other 2/3 shall remain with her brother Vicente. Four months after her death, the husband married again. The

sister of the testatrix, Elena, filed for a petition seeking the annulment of the legacy.

Issue:

WON the legacy should be forfeited.

Held:

No, there was no express condition attached to the legacy with regard to a possible 2nd marriage based on the context of the will. In order to make the testamentary provision conditional, such condition must fairly appear from the language used in the will. In this case, it was not.

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SUPPLEMENTAL NOTES:

Conditional Testamentary Dispositions. —

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A testamentary disposition is conditional when its effectivity is subordinated to the fulfi llment or nonfulfi llment of a future and uncertain fact or event. This future and uncertain fact or event upon the fulfi llment of which the testamentary disposition is made to depend is what is known as a condition.Before a testamentary disposition is considered conditional,

it is necessary that the condition must fairly appear from the language used in the will.If it does not appear in the will itself, or in a document executed with the same formalities as a will, it is not binding. In such case the testamentary disposition is pure, and not

conditional.Thus, in Morente vs. De la Santa,6 where the testatrix merely orders her husband, who is the principal beneficiary in her will, not to marry again after her death, without attaching such order to the legacies and devises, or without stating that failure to comply with the order shall result in the nullity of the legacies and devices, and subsequently, four months after her death, the husband married again, it was held that such legacies and devises are not conditional, since the condition does not fairly appear from the language used in the will. The result, however, would be different if the condition not to marry again is attached to the testamentary disposition or if the testator declared that failure to comply with the condition will nullify the testamentary disposition. Thus, in Broce vs. Marcallana,7 where the testatrix, in her will, expressly directed her husband not to get married again, after her death, or if he desires to get married again, he must choose any of her relatives within the sixth degree, otherwise, he shall lose his right to the properties bequeathed or devised to him, and subsequently, after her death, the husband got married again, but not to any of her relatives, it was held that the legacies and devises are conditional, and as a consequence of the violation of the condition, the husband loses his right to the properties given to him without prejudice to his legitime.

PROBLEM:

If a wife in her will gave her husband a legacy and ordered him never to marry again, would the husband lose the legacy if he gets married again?

ANS.:

No, the husband does not lose the legacy by the mere fact that he disobeyed the order of the wife, because in the problem given, the order was not made a condition. Had it been a condition, that is, had the wife intended forfeiture in case of disobedience, this would

have been a different matter. It should be noted that CONDITIONS should NOT be PRESUMED; they shouldbe clearly indicated. (Morente v. De la Santa, 9 Phil. 387).

SITUATION:

“A is instituted heir. He will not marry again.” This was provided by his wife in her will. This is neither a conditional institution nor a modal institution: not a condition because the condition must be express (Morente v. De la Santa, 9 Phil. 387, supra), and not a modal institution because there is no application of property or charge here. (Art. 882).

QUESTION:

Can an institution apparently modal be considered conditional?

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ANS.:

Yes. However, a mere direction in a will in connection with the enjoyment of the legacy will not be considered a condition, unless the intention of the testator to that effect is clearly shown. (Fuentes v. Canon, 6 Phil. 117; Morente v. De la Santa, 9 Phil. 387; Pestigo v.

Boval, 13 Phil. 240). The “mode” shall not be considered as a condition unless it appears that such was his intention. (Art. 882, 1st par.).

ARTICLE 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a)

Johnny S. Rabadilla vs. Court of Appeals, G.R No. 113725, June 29, 2000

(Refer to the digested case and supplemental notes above)

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Art. 883 - When without the fault of the heir, an institution cannot take effect

ARTICLE 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a)

Johnny S. Rabadilla vs. Court of Appeals, G.R. No. 113725, June 29, 2000 (same)

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Art. 884

ARTICLE 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a)

Macrohon vs. Saavedra, 5 Phil 267

SUPPLEMENTAL NOTES:

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Idem; Mixed succession. —

Originally, before the Spanish Civil Code was drafted in 1889, Spanish laws adhered to the rule of indivisibility of succession. Under this doctrine, based on the Roman law maxim – memo pro parte testatus pro parte intestatus decedere potest – succession cannot partake of the nature of both testamentary and intestate succession; in other words, it cannot be partly testate and partly intestate.45 Under the Spanish Civil Code, this rule was repealed and this repeal is confi rmed by the present Civil Code, which states that succession may be mixed in the sense that it may be effected partly by will and partly by operation of law. Thus, under our law, if the testator makes a will which does not dispose all of his property, the result is what is known as mixed succession. The succession partakes of the nature of both testamentary and legal succession. Hence, in the distribution of the hereditary

estate of the testator after his death, testamentary succession

shall take place with respect to that part of his property which he has disposed of in his will, while legal succession shall take place with respect to that part which he has not disposed of.

“The Spanish Civil Code expressly prohibits the execution of joint and mutual wills in its article 669. This article has an interesting background. The Fuero Real (Ley 9, Tit. 6, Libro 3)

allowed this kind of will between husband and wife if they had no children. The Partidas (Ley 335, Tit. 11, Partida 5) prohibited the same because it might lead to the commis sion of parricide. In spite of this express prohibition, such kind of will was executed, hence, the enactment of article 669 of the Civil Code (Spanish Civil Code) which embodies not only the provisions of the Partidas but also makes the prohibition more extensive.

“In the Philippines, a similar kind of will has sometimes been used as a basis for the distribution of the estate, as in the case of Macrohon vs. Saavedra, 51 Phil. 267 (1927). To eliminate all doubts, once and for all, and to establish a defi nite policy, Article 818 of this Code is inserted expressly prohibiting the execution of joint and mutual wills.”

“The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator’s will is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property covered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

“We find no merit in the appeal. The Appellate Court’s decision is affi rmed. Costs against the petitioner. “SO ORDERED

PROBLEM:

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A made a will stating that should he die before B, his relatives C and D would inherit certain properties and that should either C or D die before A, the survivor (between C and D) would inherit all of said specifi ed properties. However, B died before A. Would C and D get anything?

ANS.:

No, C and D would not get anything, because their designation was conditional, namely, that A should die before B, but such was not the case. Had the condition been followed, and had either C or D died before A, there would have been substitution. (Machrohon Ong Ham v.

Saavedra, 51 Phil. 267).

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Art. 887 - Compulsory heirs

ARTICLE 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a

Pisalbon vs. Bejec, 74 Phil 88 NO DIGEST

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Jose Baritua vs. Court of Appeals, G.R. No. 82233, March 22, 1990

DIGESTED CASE: BARITUA VS CA 183 SCRA 565

FACTS:

· In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by

petitioner Jose Baritua. As a result of that accident Bienvenido and his passenger died and the tricycle was damaged. No criminal case arising from the incident was ever instituted.

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· Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus insurer — Philippine First Insurance Company, Incorporated (PFICI for brevity) — Bienvenido

Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI. · On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private

respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the petitioners with the then Court of First Instance of Camarines Sur. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to

indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages.

ISSUE:

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

HELD:

· Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it.

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

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

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DIGESTED CASE#2: Baritua v. CA

FACTS:

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- The tricycle being driven by Bienvenido Nacario met an accident with a bus, driven by Edgar Bitancor and owned and operated by Jose Baritua.

- The accident caused the death of Nacario.

- No civil or criminal case was filed against the driver and Baritua. Instead, an extra-judicial settlement was entered into between Nacario’s spouse Alicia Baracena and the

petitioners and the bus’ insurer (Philippine First Insurance Company).

- In that settlement, the spouse was given P18,500 and in consideration for what she received, the widow executed an affidavit of desistance in filing any case against the

petitioners.

- A year after, the parents of Nacario filed a complaint for damages against the petitioners alleging that the petitioners promised to indemnify for the death of their son, the funeral

expenses and the damages caused to the tricycle but instead the petitioners paid to the estranged wife.

- The CFI ruled in favor of Baritua and the driver but the CA reversed the decision upon appeal. Hence, this petition.

ISSUE:

Whether or Not CA erred in ruling that the petitioners are still liable to pay to the Nacarios’ parents

HELD:

- SC held that this ruling is erroneous.

- The Court recognized that payment is one of the recognized modes in extinguishing obligations. According to Art 1240 of the CC, to effect extinguishment, payment must be made either to the person to whom the obligation is made, to his successors-in-interest, or to anyone authorized.

- It is clear under Article 887 that a surviving spouse and the legitimate children are the compulsory heirs of a decedent.

- As such, the petitioners correctly paid Alicia and her son, who are the successors-in-interest of Nacario.

- On the other hand, the parents of the deceased succeed only when the latter dies without any legitimate descendants. Since Nacario and Alicia begot a son, the legitimate ascendants are excluded from succession.

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- This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.

- Legitimate ascendants succeed only in default of legitimate descendants whereas a spouse is a concurring heir and succeeds together with all classes of heirs.

- Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.

____________________________________________________________

SUPPLEMENTAL NOTES:

Baritua vs. CA

The deceased died while driving a tricycle which collided with a bus. The widow executed a release of claim and an affidavit of desistance discharging the owner of the bus from all actions/claims arising from the accident for a certain sum of money. The parents of the deceased thereafter filed a claim for damages against the bus owner. SC ruled that the widow and her son are the successors-in-interest authorized to receive payment. The parents shall only succeed when the decedent leaves no legitimate descendants. While the surviving spouse is a concurring compulsory heir.

SUMMARY 2: Baritua v. CA 183 SCRA 565 (1990)

Decedent was killed in a bus accident; he left a widow and a child. The bus owners settled with the widow. The parents of the decedent filed an action against the bus owners.

It was held that the parents of the decedent had no cause of action because the claim was settled with the proper party – the widow in her own capacity and in her capacity as natural guardian of her and the decedent’s child. The parents are not compulsory heirs because they are excluded by their grandchild.

QUESTION:

A husband and a wife, although still legally married, have not been together for 7 years due to clear and undeniable marital problems. Upon the death of the husband, can the wife still claim her legitime to the estate as a surviving spouse (assuming without this issue, she would have, without question, inherited as a compulsory heir)?

ANSWER:

Yes, the wife can still claim her share to the estate as a surviving spouse. According to the case Baritua vs. Court of Appeals (183 SCRA 565 [1990]), mere estrangement is not a ground for the disqualification of the surviving spouse as heir.

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Victoria U. Baluyut vs. Felicidad S. Baluyut, G.R. No. 33659, June 14, 1990

SUPPLEMENTAL NOTES:

Idem; illegitimate children. —

Under the New Civil Code there are three kinds of illegitimate children who are classified as primary compulsory heirs. They are:

(1) acknowledged natural children;

(2) natural children by legal fi ction; and

(3) acknowledged illegitimate children who are not natural.14

The first includes all natural children who may have been acknowledged either voluntarily or by a final judgment of a competent court.Consequently, a natural child who has not been acknowledged is not a compulsory heir. In other words, in relation to his presumed parent, he has no successional right whatsoever. This is the settled rule in this jurisdiction.It is, however, possible that even when the testator is already dead, a natural child not acknowledged may still participate in the inheritance by maintaining a complex action to compel recognition and at the same time to obtain relief in the character of heir.18 But such an action would be possible only in those exceptional cases provided by law.

The second includes all of those children born or conceived of void marriage as well as those conceived of voidable marriages after the decree of annulment. By express provision of law, such children shall have the same status, rights and obligations as acknowledged natural children. Consequently, they are also primary compulsory heirs. Since their status is conferred upon them by operation of law, recognition by the testator is not necessary. However, according to Art. 887 of the Code, proof of filiation is still required.

The third includes all illegitimate children other than natural children in accordance with Art. 269 and other than natural children by legal fiction. In other words, they are those children born outside of wedlock of parents who, at the time the conception of the former, were disqualifi ed by some impediment to marry each other. Under the law, this class of illegitimate children shall be entitled to support and such successional rights as are granted in the Civil Code. These rights, however, are predicated on the fact that there must be either

voluntary or compulsory recognition by the putative parent. This now is well-settled in this jurisdiction. Contrary to the provisions of the New Civil Code, the Family Code provisions limit the classifi cation of children to only the legitimate and the illegitimate children. Thus, the further classifi cation of illegitimate children to (1) acknowledged natural children; (2)

natural children by legal fi ction; and (3) acknowledged illegitimate children who are not natu ral; was thereby eliminated. Now, all illegitimate children are simply referred to as illegitimate children. Under the Family Code, illegitimate children, like legitimate children, are given their status as such from the moment of birth.

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Hence, there is no need for illegitimate children to fi le the action for recognition if they have been recognized by their parents by any of the evidences enumerated in Art. 172 of the Family Code. Where the illegitimate children are required to establish their illegitimate

fi liation, they can do so in the same way and by the said evidences. As stated in the case of Edna Padilla Mangulabnan as guardian ad litem for minor Alfi e Angelo Acero vs. the Honorable Intermediate Appellate Court and Ambrosio Tan Chen Acerto (G.R. No. 71994,

May 31, 1990) and the case of Victoria U. Baluyut, Ma. Theresa U. Baluyut and Ma. Flordeliza U. Baluyut, all minors, represented by their mother and guardian ad litem, Norma Urbano vs. Felicidad S. Baluyut and Hon. Court of Appeals (G.R. No. L-33659, June 14, 1990), fi liation may be proved by the voluntary or compulsory recognition of the illegitimate child. Recognition is voluntary when made by the putative parent in the record of birth, a will, a statement before a court of record or in any authentic writing (Art. 278, Civil Code). (Under the Family Code, however, private instruments signed by the putative parent is acceptable to establish the child’s fi liation.

Such documents need not be limited to authentic public document as required by Art. 265 of the New Civil Code) Filiation may be proved by compulsory recognition under Art. 283 of the Civil Code or when by court action, the child brings out his recognition.

The following children are illegitimate under Art. 165 of the Family Code:

(1) Children born of couples who are not legally married, or of common-law marriages;

(2) Children born of bigamous or polygamous marriages;

(3) Children born of adulterous relations between the parents;

(4) Children born of couples below 18 years old, whether they are married (but which marriage is void) or not;

(5) Children born of other void marriages under Art. 35 of the Family Code. This excludes marriages solemnized by any person not legally authorized to perform marriages but such marriages were contracted with either or both parties believing in good faith that the solemnizing offi cer had the legal authority to do so;

(6) Children born of incestuous marriages under Art. 37 of the Family Code;

(7) Children born of marriages void for reasons of public policy under Art. 38 of the Family Code.

However, children of marriages void under (i) Art. 36 of the Family Code (because either of the parties to the marriage was psychologically incapacitated to comply with the essential marital obligations of marriage); and (ii) Art. 53 of the Family Code (because either of the former spouses who marries again fails to comply with such requirements as recording in the appropriate civil registry and registry of property the judgment of annulment of marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitime), are legitimate.

_________________________________________________

Lauro G. Vizconde vs. Court of Appeals, G.R. No. 118449, February 11, 1998

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QUIZ IN WILLS & SUCCESSION

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

On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of 10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos (P135,000.00), evidenced by a "Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT No. T-36734". 1 In view thereof, TCT No. V-554 covering the Valenzuela property was issued to Estrellita. 2 On March 30, 1990, Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00). 3 In June of the same year, Estrellita bought from Premier Homes, Inc., a parcel of land with improvements situated at Vinzon St., BF Homes, Parañaque (hereafter Parañaque property) using a portion of the proceeds of sale of the Valenzuela property. The remaining amount of the proceeds was used in buying a car while the balance was deposited in a bank.

The following year an unfortunate event in petitioner's life occurred. Estrellita and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the "Vizconde Massacre". The findings of the investigation conducted by the NBI reveal that Estrellita died ahead of her daughters. 4 Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his daughters. Nevertheless, petitioner entered into an "Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver of Shares", 5 with Rafael and Salud, Estrellita's parents. The extra-judicial settlement provided for the division of the properties of Estrellita and her two daughters between petitioner and spouses Rafael and Salud. The properties include bank deposits, a car and the Parañaque property. The total value of the deposits deducting the funeral and other related expenses in the burial of Estrellita, Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00). 6 The settlement gave fifty percent (50%) of the total amount of the bank deposits of Estrellita and her daughters to Rafael, except Savings Account No. 104-111211-0 under the name of Jennifer which involves a token amount. The other fifty percent (50%) was allotted to petitioner. The Parañaque property and the car and were also given to petitioner with Rafael and Salud waiving all their "claims, rights, ownership and participation as heirs" 7 in the said properties.

On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita instituted an intestate estate proceeding 8 docketed as Sp. Proc. No. C-1679, with Branch 120 of the Regional Trial Court (RTC) of Caloocan City listing as heirs Salud, Ramon, Ricardo, and the wife (Zenaida) and children of Antonio. Teresita prayed to be appointed Special Administratrix of Rafael's estate. Additionally, she sought to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent brother Herein private respondent Ramon filed an opposition 9 dated March 24, 1993, praying to be appointed instead as Salud and Ricardo's guardian. Barely three weeks passed, Ramon filed another opposition 10 alleging, among others, that Estrellita was given the Valenzuela property by Rafael which she sold for not less than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded for the court's intervention "to determine the legality and validity of the intervivos distribution made by deceased Rafael to his children," 11 Estrellita included. On May 12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699, entitled "In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas" and averred that their legitime should come from the collation of all the properties distributed to his children by Rafael during his lifetime. 12 Ramon stated that herein petitioner is one of Rafael's children "by right of representation as the widower of deceased legitimate daughter of Estrellita." 13

In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as the guardian of Salud and Ricardo while Teresita, in turn, was appointed as the Special Administratrix of Rafael's estate. The court's Order did not include petitioner

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in the slate of Rafael's heirs. 14 Neither was the Parañaque property listed in its list of properties to be included in the estate. 15 Subsequently, the RTC in an Order dated January 5, 1994, removed Ramon as Salud and Ricardo's guardian for Selling his ward's property without the court's knowledge and permission. 16

Sometime on January 13, 1994, the RTC released an Order giving petitioner "ten (10) days . . . within which to file any appropriate petition or motion related to the pending petition insofar as the case is concerned and to file any opposition to any pending motion that has been filed by both the counsels for Ramon Nicolas and Teresita de Leon." In response, petitioner filed a Manifestation, dated January 19, 1994, stressing that he was neither a compulsory heir nor an intestate heir of Rafael and he has no interest to participate in the proceedings. The RTC noted said Manifestation in its Order dated February 2, 1994. 17 Despite the Manifestation, Ramon, through a motion dated February 14, 1994, moved to include petitioner in the intestate estate proceeding and asked that the Parañaque property, as well as the car and the balance of the proceeds of the sale of the Valenzuela property, be collated. 18 Acting on Ramon's motion, the trial court on March 10, 1994 granted the same in an Order which pertinently reads as follows:

xxx xxx xxx

On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case and considering the comment on his Manifestation, the same is hereby granted. 19

xxx xxx xxx

Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon opposed. 20 On August 12, 1994, the RTC rendered an Order denying petitioner's motion for reconsideration. It provides:

xxx xxx xxx

The centerpoint of oppositor-applicant's argument is that spouses Vizconde were then financially incapable of having purchased or acquired for a valuable consideration the property at Valenzuela from the deceased Rafael Nicolas. Admittedly, the spouses Vizconde were then living with the deceased Rafael Nicolas in the latter's ancestral home. In fact, as the argument further goes, said spouses were dependent for support on the deceased Rafael Nicolas. And, Lauro Vizconde left for the United States in, de-facto separation, from the family for sometime and returned to the Philippines only after the occurrence of violent deaths of Estrellita and her two daughters.

To dispute the contention that the spouses Vizconde were financially incapable to buy the property from the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in business venture such as taxi business, canteen concessions and garment manufacturing. However, no competent evidence has been submitted to indubitably support the business undertakings adverted to.

In fine, there is no sufficient evidence to show that the acquisition of the property from Rafael Nicolas was for a valuable consideration.

Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father was gratuitous and the subject property in Parañaque which was purchased out of the proceeds of the said transfer of the property by the deceased Rafael Nicolas in favor of Estrellita, is subject to collation.

QUESTIONS: A) Is the order of the Court correct?

B) State the nature and purpose of collation.

ANSWER: LAURO G. VIZCONDE, petitioner, vs.COURT OF APPEALS, , G.R. No. 118449 February 11, 1998

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_____________________________________

SUPPLEMENTAL NOTES:

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. [Vizconde v CA]

__________________________________________

Art. 888 - Legitime of legitimate children and descendants

ARTICLE 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a)

____________________________________________________

Danilo I. Suarez vs. Court of Appeals, G.R. No. 94918, September 2, 1992

SUPPLEMENTAL NOTES:

(1) Conditions for the Transmission of Successional Rights

It is true that death transfers the rights to the succession

— but only if the following conditions are present, namely:

(a) that indeed there has been a death (either actual or presumed)

(b) that the rights or properties are indeed transmissible or descendible

(c) that the transferee is still alive (no predecease), willing (no repudiation), is capacitated to inherit.

[NOTE: These are also called the requisites for succession mortis causa.].

[NOTE: Though the law says “are transmitted,” the proper words should be “are made effective,” for otherwise, we may be led to believe that the decedent’s right to succeed are what are transmitted, and not the rights to the inheritance.].

DIGESTED CASE: Danilo I. Suarez, et al. v. CA, et al.

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GR 94918, Sep. 2, 1992

FACTS:

Petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has not been liquidated or partitioned. In 1977, petitioners’ widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages. The judgment against petitioner’s mother and Rizal Realty Corporation having become fi nal and executory, fi ve (5) valuable parcels of land in Pasig, Metro Manila (worth to be millions then) were levied and sold on execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.00. Private respondents were then issued a certifi cate of sale which was subsequently registered on Aug. 1, 1983. On June 21, 1984, before the expiration of the redemption period, petitioners fi led a reivindicatory action against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case 51203, for the annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held liable therefor and that the fi ve (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution. On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a fi nal deed of sale over the properties. On Oct. 22, 1984, Teofi sta Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration of the Order dated Oct. 10, 1984, claiming that the parcels of land are co-owned by them and further informing the Court the filing and pendency of an action to annul the auction sale (Civil Case 51203), which motion however, was denied. On Feb. 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the fi nding that the auctioned lands are co-owned by petitioners. On Mar. 1, 1985, private respondent

Valente Raymundo fi led in Civil Case 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute; however, such motion was later denied by Branch 155, Regional

Trial Court, Pasig. On Dec. 1985, Raymundo fi led in Civil Case 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding petitioner’s pending motion for the issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration was filed but was later denied. On Oct. 10, 1984, RTC Branch 151 issued in Civil Cases 21736-21739 an Order directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from removing or

alienating improvements thereon; and to surrender to private respondents the owner’s duplicate copy of the Torrens Title and other pertinent documents. Teofi sta Suarez then fi led with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated Oct. 10, 1984 and Oct. 14, 1986 issued in Civil Cases 21736-21739.

On Dec. 4, 1986, petitioners fi led with Branch 155 a Motion for reconsideration of the Order dated September 24, 1986. In an Order June 10, 1987, Branch 155 lifted its previous order

of dismissal and directed the issuance of alias summons. Respondents then appealed to the Court of Appeals seeking to annul the orders dated Feb. 25, 1985. May 19, 1989 and Feb. 26, 1990 issued in Civil Case 51203 and further ordering respondent judge to dismiss Civil Case 51203. The appellate court rendered its decision on July 27, 1990, the dispositive portion of which reads:

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“WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated Feb. 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case 51203.’’ Hence, this appeal.

HELD:

It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case: “The rights to the succession are transmitted from the moment of the death of the decedent.’’ Article 888 further provides: “The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and

of the surviving spouse as hereinafter provided.’’ Article 892, par. 2 likewise provides: “If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate chil dren or descendants.’’ Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of Aug. 28, 1990 are hereby REVERSED and set aside; and Civil Case 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.

________________________________________________________________________

DIGESTED CASE#2: Suarez v. CA

Facts:

Petitioners are siblings. Their father died but his estate consisting of several parcels of land has not been liquidated. Then the mother petitioners lost in the consolidated cases for rescission of contract and damages. The judgment having become final and executory, five parcels of land were levied to satisfy the judgment. Private respondents were the highest bidder and was issued a certificate of sale then registered. Before the expiration of the redemption period, petitioners filed a reinvindicatory to recover ownership of the said properties. They allege that being strangers to the case, their properties cannot be levied nor sold. The court then issued an order directing them to vacate the premises of the said lands and to give the duplicate titles to private respondents. Petitioners filed for a motion for reconsideration an the order to vacate was lifted. The respondents then appealed to the CA which annulled the orders of the RTC.

Issue:

Whether or not private respondents can validly acquire all the five parcels of land co-owned by petitioners and registered in the name of petitioner’s deceased father whose estate has not been liquidated, after the said properties were levied and publicly sold to private respondents to satisfy the personal debt of the surviving spouse and mother of herein petitioners?

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Ruling:

Only ½ of the 5 parcels of land should have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:

“The rights to the succession are transmitted from the moment of the death of the decedent.” Article 888 further provides:

“The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.”

Article 892 par. 2 provides:

If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants.

The propriety interest of petitioners is different and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right, therefore they are not barred in any way from annulling the auction sale.

____________________________________________________________

DIGESTED CASE: FRANCISCO vs. FRANCISCO March 8, 2001

FACTS:

Respondent Aida is the only daughter of Gregorio and Cirila, both deceased. Petitioners are daughters of Gregorio with his common law wife Julia. Gregorio sold a parcel of land to his illegitimate children.

HELD:

The kasulatan was simulated. There was no consideration for the contract of sale. Even if it was not simulated, it still violated the Civil Codei provisions insofar as the transaction affected respondent‘s legitime. The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code. Obviously, the sale was Gregorio‘s way to transfer the property to his illegitimate daughters at the expense of his legitimate daughter. If indeed the parcels of land involved were the only property left by their father, the sale in fact would deprive respondent of her share in her father‘s estate. By law, she is entitled to half of the estate of her father as his only legitimate child.

________________________________________________

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Art. 891 - Reserva troncal

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

DIGESTED CASE: Marcelina EDROSO vs. Pablo and Basilio SABLAN

G.R. No. 6878, September 13, 1913

FACTS:

Spouses Marcelina Edroso and Victoriano Sablan had a son named, Pedro who inherited two parcels of land upon the death of his father. Subsequently, Pedro died, unmarried and without issue, the two parcels of land passed through inheritance to his mother. Hence the hereditary title whereupon is based the application for registration of her ownership. The two uncles of Pedro, Pablo and Basilio Sablan (legitimate brothers of Victoriano) opposed the registration claiming that either the registration be denied or if granted to her, the right reserved by law to them be recorded in the registration of each parcel. The Court of Land Registration denied the registration holding that the land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles. Hence, this appeal.

ISSUES:

Whether or not the property in question is in the nature of a reservable property.

Whether or not Marcelina Edroso has the absolute title of the property to cause its registration.

RULING:

A very definite conclusions of law is that the hereditary title is one without a valuable consideration (gratuitous tile), and it is so characterized in Article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles are within the third degree of blood relationship.

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Article 811. The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another descendant, or form a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line where the property proceeded.

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

The conclusion is that the person required by Article 811 to reserve the right has, beyond any doubt at all, the rights to use and usufruct. He has, moreover, 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 hadn’t, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the property, first because it is no way, either actually or constructively or formally, in their possession; and moreover, because they have no title of ownership or of the 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.

______________________________________

DIGESTED CASE #2: EDROSO v SABLAN

25 Phil. 295

ARELLANO; September 13 1913

-Marcelina Edroso was married to Victoriano Sablan until his death on Sept. 22, 1882.

In this marriage they had a son named Pedro, who was born on August 1, 1881, and

who at his father's death inherited the two said parcels. Pedro also died on July 15,

1902, unmarried and without issue, and by his decease the two parcels of land in

Pagsanjan, Laguna, passed through inheritance to his mother, Marcelina Edroso.

Hence the hereditary title whereupon is based the application for registration of her

ownership.

-Two legitimate brothers of Victoriano Sablan [uncles german of Pedro] appeared in

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the case to oppose the registration, claiming either (1) that the registration be denied

OR (2) that if granted to her the right reserved by law to the opponents be recorded in

the registration of each parcel.

-The Court of Land Registration denied the registration and the applicant appealed

through a bill of exceptions. Registration was denied because the trial court held that

the parcels of land in question partake of the nature of property required by law to be

reserved and that in such a case application could only be presented jointly in the

names of the mother and the said two uncles of Pedro Sablan.

Note: Mariano Sablan and Maria Rita Fernandez son Victoriano Sablan son Pedro

Sablan mother Marcelina Edroso

ISSUE

WON the lands which are the subject matter of the application are required by law to

be reserved

HELD

YES.

-The hereditary title is one without a valuable consideration [gratuitous title]. He who

acquires by inheritance gives nothing in return for what he receives

-Art. 811, OCC provides: “The ascendant who inherits from his descendant property

which the latter acquired without a valuable consideration from another ascendant, or

from a brother or sister, is under obligation to reserve what he has acquired by

operation of law for the relatives who are within the third degree and belong to the

line whence the property proceeded.”

-Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of

land which he acquired without a valuable consideration – that is, by inheritance from

another ascendant, his father Victoriano. Having acquired them by operation of law,

she is obligated to reserve them intact for the claimants, who are uncles or relatives

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within the third degree and belong to the line of Mariano Sablan and Maria Rita

Fernandez, whence the lands proceeded. The trial court's ruling that they partake of

the nature of property required by law to be reserved is therefore in accordance with

the law.

-If Pedro Sablan had instituted his mother in a will as the universal heiress of his

property, all he left at death would not be required by law to be reserved, but only

[Art. 809, OCC.] In such case only the half constituting the legal portion would be

required by law to be reserved, because it is what by operation of law would fall to the

mother from her son's inheritance; the other half at free disposal would not have to be

reserved. This is all that article 811 of the Civil Code says.

-Proof of testate succession devolves upon the heir or heiress who alleges it. In this

case, the interested party has not proved that either of the lots became Marcelina’s

inheritance through the free disposal of her son.

-Two kinds of property required by law to be reserved are distinguished in the Civil

Code. Article 968: "Besides the reservation imposed by article 811, the widow or

widower contracting a second marriage shall be obliged to set apart for the children

and descendants of the first marriage the ownership of all the property he or she may

have acquired from the deceased spouse by will, by intestate succession, by gift, or

other transfer w/out a valuable consideration."

-From principles of jurisprudence laid down by the Supreme Court of Spain, it is

inferred that if from December, 1889, to July, 1893, a case had occurred of a right

required to be reserved by article 811, the persons entitled to such right would have

been able to institute, against the ascendants who must make the reservation,

proceedings for the assurance and guaranty that articles 977 and 978 grant to the

children of a first marriage against their father or mother who has married again. The

proceedings for assurance, under article 977, are: Inventory of the property subject to

the right reserved, annotation in the property registry of such right reserved in the

real property and appraisal of the personal property; and the guaranty, under article

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978, is the assurance by mortgage, in the case of realty, of the value of what is validly

alienated.

-Article 199 of amended Mortgage Law: "The special mortgage for guaranteeing the

right reserved by article 811 of the Civil Code can only be required by the relatives in

whose favor the property is to be reserved, if they are of age; if minors, it will be

required by the persons who should legally represent them. In either case the right of

the persons in whose favor the property must be reserved will be secured by the same

requisites as set forth in the preceding articles (relative to the right reserved by article

968 of the Civil Code), applying to the person obligated to reserve the right the

provisions with respect to the father."

-The lapse of the ninety days is not the expiration by prescription of the period for the

exercise of this right of action by the persons in whose favor the right must be

reserved, but really the commencement thereof, and enables them to exercise it at

any time, since no limit is set in the law. So, if the annotation of the right required by

law to be reserved in the two parcels of land in question must be made in the property

registry of the Mortgage Law, the persons entitled to it may now institute proceedings

to that end, and an allegation of prescription against the exercise of such right of

action cannot be sustained.

“What are the rights in the property of the person who holds it subject to the

reservation of article 811 of the Civil Code?”

-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, 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

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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,

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. If any of the persons in whose favor

the right is reserved should, after their right has been assured in the registry, dare to

dispose of even nothing more than the fee simple of the property to be reserved his

act would be null and void, for it is impossible to determine the part "that might

pertain therein to the relative at the time he exercised the right, because in view of

the nature and scope of the right required by law to be reserved the extent of his right

cannot be foreseen, for it may disappear by his dying before the person required to

reserve it, just as it may even become absolute should that person die."

-No act of disposal inter vivos of the person required by law to reserve the right can

be impugned by him in whose favor it is reserved, because such person has all,

absolutely all, the rights inherent in ownership, except that the legal title is burdened

with a condition that the third party acquirer may ascertain from the registry in order

to know that he is acquiring a title subject to a condition subsequent. In conclusion, it

seems to us that only an act of disposal mortis causa in favor of persons other than

relatives within the third degree of the descendant from whom he got the property to

be reserved must be prohibited to him, because this alone has been the object of the

law: "To prevent persons outside a family from securing, by some special accident of

life, property that would otherwise have remained therein."

“Can the heir of the property required by law to be reserved himself alone register the

ownership of the property he has inherited?”

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-YES when the persons in whose favor the reservation must be made agree thereto

and provided that the right reserved to them in the two parcels of land is recorded, as

the law provides.

_______________________________________________

DIGESTED CASE# 3: EDROSO VS SABLAN (25 PHIL 295)

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

whereupon is based the application for registration of her ownership.

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

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

Held:

· Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration — that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she

is obligated to relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature property required by law to be reserved is therefore in

accordance with the law.

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

· The case presents no testamentary provision that demonstrate any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by

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operation of law, and not by will or the wish of the predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have therefore been fully complied with.

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

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

all that article 811 of the Civil Code says.

DIGESTED CASE#4: Marcelina EDROSO, petitioner-appellant, vs. Pablo and Basilio SABLAN, opponent-appellees. G.R. No. 6878, September 13, 1913

FACTS:

Spouses Marcelina Edroso and Victoriano Sablan had a son named, Pedro who inherited two parcels of land upon the death of his father. Subsequently, Pedro died, unmarried and without issue, the two parcels of land passed through inheritance to his mother. Hence the hereditary title whereupon is based the application for registration of her ownership. The two uncles of Pedro, Pablo and Basilio Sablan (legitimate brothers of Victoriano) opposed the registration claiming that either the registration be denied or if granted to her, the right reserved by law to them be recorded in the registration of each parcel. The Court of Land Registration denied the registration holding that the land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles. Hence, this appeal.

ISSUES:

1. Whether or not the property in question is in the nature of a reservable property.

2. Whether or not Marcelina Edroso has the absolute title of the property to cause its registration.

RULING:

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A very definite conclusions of law is that the hereditary title is one without a valuable consideration (gratuitous tile), and it is so characterized in Article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles are within the third degree of blood relationship.

Article 811. The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another descendant, or form a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line where the property proceeded.

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him the two parcels of land which he had acquired without a valuable consideration – that is, by inheritance from another ascendant, his father Victoriano. Having acquire them by operation of law, she is obligated to relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez (parents of Victoriano), where the lands proceeded. The trial court’s ruling that they partake of the nature property required by law to be reserved is therefore in accordance with the law. The conclusion is that the person required by Article 811 to reserve the right has, beyond any doubt at all, the rights to use and usufruct. He has, moreover, 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 hadn’t, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the property, first because it is no way, either actually or constructively or formally, in their possession; and moreover, because they have no title of ownership or of the 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.

________________________________________________

SUPPLEMENTAL NOTES:

Edrosovs.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.

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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.

What is the nature of the reservista’s right?

According to the case Edroso vs. Sablan (25 Phil. 295 [1913]), the following characterize the right of the reservista:

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 registerable.

Reserva Troncal; Concept. —

Reserva troncal or lineal maybe defined as the reservation by virtue of which an ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefi t of relatives who are within the third degree and who belong to the line from which said property came.41 By its very nature, this reserva constitutes an exception to the system of legitime as well as to the order of intestate succession as recognized and regulated in our Code. Hence, commentators have aptly described it as a reserva extraordinaria.

Purpose. —

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From the very name of the reserva itself, it is apparent that the purpose of reserva troncal or lineal is to prevent persons who are strangers to the family from acquiring, by some

chance or accident, property which otherwise would have remained with the said family. This explains why the law requires that the ascendant who is obliged to make the reservation should reserve the property for the benefi t of relatives who are within the third degree

and who belong to the line from which the said property came.46

Requisites. —

In order that there will be a reservation of the property in accordance with the provision of Art. 891, the following requisites must concur:

(1) The property should have been acquired by operation of law by an ascendant from his descendant upon the death of the latter;

(2) The property should have been previously acquired by gratuitous title by the descendant from another ascendant or from a brother or sister; and

(3) The descendant should have died without any legitimate issue in the direct descending line who could inherit from him.

A fourth requisite is sometimes added — that there must be relatives of the descendant who are within the third degree and who belong to the line from which the property came. As a matter of fact, it was so held by the Supreme Court, citing Dr. Padilla, in Chua vs.

CFI of Negros, Occidental (78 SCRA 412). It is submitted, however, that this is not a requisite, but merely a resolutory condition to which the reserva is subject. As stated by Morell, “the ascendant acquires the property with a condition subsequent, to wit: whether or not there exist at the time of his death relatives within the third degree of the descendant in the line from whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist the ascendant can freely

dispose thereof.’

The above requisites may be illustrated by the following example:

GF ORIGIN

A B F

P

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Before his death in 1950, GF donated a parcel of land to his grandson, P, the only child of his deceased son, F. P died intestate in 1960 without any heir in the direct descending line, as a consequence of which the land passed to his mother, M, in accordance with the

laws of intestate succession. Is the property reservable? It is evident that the property in this particular case is reservable, because all of the requisites for reservation are present. In the fi rst place, M, who is the ascendant reservista, had acquired the property by operation of law from her descendant, P; in the second place, P, who is the descendant-propositus, had previously acquired the property by gratuitous title from another ascendant, his grandfather, GF, who is the origin of the said property; and in the third place, the descendant had died without any legitimate issue in the direct descending line who could inherit from him. Consequently, from the time of the death of the descendant-propositus, P, in 1960, the

ascendant, M, who acquired the property, is obliged to reserve it for the benefi t of relatives of the propositus who are within the third degree and who belong to the line from which the said property came. This reservable character of the property will, as a rule, terminate

upon the death of the ascendant-reservista. Thus, if we extend the example by presupposing that M died in 1977, A and B, uncles of the propositus, P, in the paternal line, can claim the property as their own in accordance with the provision of Art. 891 of the Code.

Nature. —

Although some commentators hold that the right of the ascendant-reservista in the reservable property during the pendency or lifetime of the reserves is similar to that of the fi duciary in fi deicommissary substitutions48 and others maintain that it is exactly

the same as that of a usufructuary, the ultimate or naked title being vested in the person in whose favor the reserva is established,the weight of authority, and this has been adopted in this jurisdiction, is to the effect that the ascendant-reservista acquires the ownership

of the property subject to the resolutory condition that there must exist relatives of the descendant-propositus who are within the third degree and who belong to the line from which the said property came. If the condition is fulfi lled, that is, if such relatives exist

after his death, the property passes, in accordance with this special order of succession, to such relatives. But if the condition is not fulfilled, the property is released and will be adjudicated in accordance with the regular order of succession.50 On the other hand, during

the whole period between the constitution of the reserva and the extinction thereof, the reservatarios or relatives of the descendantpropositus within the third degree have only an expectation to the property, an expectation which cannot be transmitted to their own

heirs, unless these heirs are also within the third degree. However,upon the fulfi llment of the condition to which the reserva is subject this expectation is converted automatically and by operation of law into an absolute right of ownership so that the property ceases altogether to be a part of the estate of the ascendant-reservista.Consequently, it cannot be held liable for the payment of debts of the ascendant which are chargeable against his estate.

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Edroso vs. Sablan 25 Phil. 255

The two parcels of land, which constitute the subject matter of this appeal, were inherited by Marcelina Edroso from her son, Pedro Sablan, who died unmarried and without issue in 1902. The records show that these lands had been inherited by Pedro from his father, Victorian Sablan, who died in 1882. After the death of Pedro, Marcelina Edroso applied for registration of these disputed lands, but the application was opposed by two paternal uncles of Pedro Sablan on the ground that said lands are reservable in accordance with the provision of Art. 811 (now Art. 891) of the Civil Code and, therefore, cannot be registered in the applicant’s name, since she is merely a usufructuary. The Supreme Court, however, held:

“The ascendant who inherits from a descendant, whether by the latter’s wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute ownership.

All the attributes of the right of ownership belong to him exclusively — use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered, in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third degree who belong to the line whence the property proceed, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness

in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law. There is marked difference between the case where a man’s wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and

the case of the ascendant in Article 811 (now Art. 891). In the first case there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and only he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property except that he may dispose of the right of usufruct in accordance with the provision of Article 489 (now Art. 572) of the Civil Code, because he totally lacks the fee simple. But the ascendant who holds the property required by Article 811 (now Art. 891) to be reserved, can dispose of the property itself, and recover it from

anyone who may unjustly detain it, while the person in whose favor the right is required to be reserved in either case cannot perform any act whatsoever of disposal or of recovery.

“The ascendant acquires the property with a condition subsequent, to wit: whether or not there exist at the time of his

death relatives within the third degree of the descendant in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist, the ascendant can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendant may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give what does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third

degree will in turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve

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the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will acquire it and all the rest that has the same character in complete ownership in fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary.” (Morell, Estudios Sobre BienesReservables, 304, 305).

“The conclusion is that the person required by Article 811 (now Art. 891) 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.

“Therefore, we reverse the judgment appealed from and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the application, recording in the reg istration the right required by Article 811 (now Art. 891) to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her, without special fi nding as to costs.

Personal Element. —

Reserva troncal presupposes a great complexity of personal elements. They are as follows:

(1) The ascendant, brother or sister, otherwise known as the origin of the property, from whom the descendant-propositus had acquired the property by gratuitous title;

(2) The descendant-propositus from whom the ascendantreservista in turn had acquired the property by operation of law;

(3) The ascendant-reservista who is obliged to reserve the property; and

(4) The relatives of the propositus, otherwise known as the reservatarios, who are within the third degree and who belong to the line from which the property came and for whose benefi t the reservation is constituted. It is, however, an indispensable requirement that all of

these personal elements must be joined by the bonds of legitimate relationship. In other words, reserva troncal is possible only in the legitimate family.

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Edroso v. Sablan

25 Phil. 295

The reservees are entitled to have their right annotated when the property is being registered under the Torrens System, so that the reservation may be annotated as a lien on the property. Unless this right is done, the reserva is extinguished, after the one-year period, insofar as innocent third parties are concerned. (See also De los Reyes v. Paterno, 34 Phil. 420).

BAR QUESTION

A inherited certain property from his son B, who in turn had acquired it by inheritance from his deceased mother. Do you think that A can dispose by will of said property in favor of his own brothers, provided that at the time of his death, he should have no compulsory heirs?

ANS.:

No, insofar as the property was inherited by A by legal succession or as part of his legitime in view of the existence here of reserva troncal. (Art. 891).

If the property (land) is about to be registered under the Torrens System of the reservor, the reservee is given the rights to oppose, not for the purpose of opposing, but for the purpose of annotating the reservatory lien on the property. (Edroso v. Sablan, 25 Phil. 295). Once the

reservatory lien is annotated in the Registry in favor of the reservee, it is understood that, as soon as the reservoir dies, the Registrar can issue a transfer Certifi cate of Title to the reservee, without the necessity of testate or intestate settlement proceedings. This is because the reserva in favor of the reservee had already been previously recognized. It would have been different had there been no previous registration of the lien.

(g) Even while the reservor is still alive, may the reserve sell the property to strangers?

ANS.:

Yes, subject of course, to the condition that the reservee is still alive at the time the reservor dies, otherwise the sale is not valid for failure of the condition

to materialize. While it is true that a negative answer has been given by our Supreme Court in the case of Edroso v. Sablan (25 Phil. 295), still it should be noted that the Edroso

decision on this point was based only on a decision of the Supreme Court of Spain dated Dec. 30, 1897, a decision later REVERSED in principle by same Spanish Tribunal on Apr. 1, 1914.

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Moreover, it is very clear under our new Civil Code that “future property” or “thereafter-acquired property,” which in the meantime is merely an expectancy, can be validly sold. (See Canuto Martin v. Maria Reyes, L-4402, July 28, 1952).

Art. 1462, new Civil Code reads, in the second paragraph:

“There may be a contract of sale of goods, whose acquisition by the seller depends upon a contingency which may or may not happen.” Furthermore, Art. 1461 of the Civil Code, in its second paragraph provides:

“The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into existence.”

The reservees have the right to demand reimbursement for defects or deteriorations imputable to the reservor. The reimbursement may be made either from reservor’s

estate or from proceeds realized from the foreclosure of securities that may have been given for the performance of obligations of the reservor. (See 7 Manresa 300).

(n) But the reservees cannot, as long as the reservor is alive, impugn or annul any alienation or encumbrance effected by the reservor, whether same be on personal or real

property. (See Edroso v. Sablan, 26 Phil. 296; see also Art. 976, old Civil Code).

Can the reservatorio (reservee) alienate his right of expectancy during the lifetime of the reservor?

The Supreme Court answered in the negative in the case of Edroso vs. Sablan, 24 Phil. 295, decided on September 13, 1913. Later, the Supreme Court in the case of Sienes vs. Esparcia, 1 SCRA 750 decided on March 24, 1961 abandoned the Edroso doctrine holding that the reservee may alienate the reservable property during the lifetime of the

reservor subject to the resolutory condition that he would survive the reservor. If he does not survive the reservor, the ownership of the latter becomes fixed and consolidated

rendering ineffective the sale made by the reservee.

Under the new Civil Code, “future property” or “thereafter-acquired property” which is merely an expectancy can be sold (Articles 1461 and 1462).

· Juridical Nature of Reserva Troncal

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The juridical nature of the reserve troncal may be viewed from 2 aspects –

from that of the reservista and that of the reservatarios.

1. Juridical Nature from

the viewpoint of the RESERVISTA

- Manresa says that “the ascendant is in the first place a USUFRUCTUARY who should

use and enjoy the things according to their nature, in the manner and form already set

forth in the Code referring to use and usufruct.”

- But since in addition to being the usufructuary, he is, even though CONDITIONALLY, the owner in fee simple of property, he CAN DISPOSE of it in the manner provided in Articles 974 and 976 of the Code.

- The conclusion is that the person required by Art811 to reserve the right has, beyond

any doubt at all, the rights of use and usufruct. He has, moreover, the LEGAL

TITLE and DOMINION, although under a CONDITION subsequent [whether or not

there exist at the time of his death relatives within the 3rd degree of the descendant

from whom they inherit in the line whence the property proceeds].

- Clearly, he has, under an express provision of 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. [Edroso v Sablan]

From Edroso, the following may

be derived:

A. The reservista’s right over the reserved property is one of ownership.

B. The ownership is subject to a

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RESOLUTORY CONDITION, i.e. the existence of reservatorias at the time of the

reservista’s death.

C. The right of ownership is alienable, but subject to the same resolutory condition.

D. The reservista’s right of ownership is registerable.

2. Juridical Nature from the viewpoint of the

RESERVATARIOS

- The nature of the reservatarios’ right is, Manresa says, that “during the whole

period between the constitution in legal form of the right required by law to be

reserved and the extinction thereof, the relatives within the 3rd degree, after the

right that in their turn may pertain to them has been assured, have only an

EXPECTATION and therefore they do not even have the capacity to transmit that

expectation to their heirs.”

- The relatives within the 3rd degree in whose favor the right is reserved cannot dispose

of the property, first because it is in 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 take their place in

the succession of the descendant of whom they are relatives within the 3rd degree, that

is to say, a second contingent place in said legitimate succession in the fashion of

aspirants to a possible future legacy.[Edroso v. Sablan]

- The reserva instituted by law instituted by law in favor of the heirs within the 3rd

degree belonging to the line from which the reservable property came, constitutes a

REAL RIGHT which the reserve may alienate and dispose of, albeit conditionally,

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the CONDITION being that the alienation shall transfer ownership to the vendee only

if an when the reserve survives the person obliged to reserve. [Sienes v. Esparcia]

From Sienes, the following may be derived:

A. The reservatarios have a right of expectancy over the property.

B. The right is subject to a SUSPENSIVE CONDITION, i.e. the expectancy ripens into

ownership if the reservatarios survive the reservista.

C. The right is alienable, but subject to the same suspensive condition.

D. The right is registerable.

Florentino v. Florentino also held that the reservista has NO POWER to appoint,

by will, which specific individual of the reservatarios were to get the reserved property. [As also held in Gonzales v. CFI].

The reservees do not inherit from the reservoir but from the PREPOSITUS, of

whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor. [Padura v. Baldovino as cited in Gonzales v. CFI]

The rule in this jurisdiction, therefore, is that upon the reservista’s death, the

property passes by strict operation of law [according to the rules of intestate succession, as held in Padura], to the proper reservatarios. Thus, the selection of which reservatarios will get the property is made by law and not by the

reservista.

Nature of Reserva Troncal:

reservor is the absolute owner subject to the resolutory condition of the existence of 3rd degree relatives as reserves at the time of the reservor’s death.

Edroso vs. Sablan

Facts:

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Father died, son inherited lands. Son died, so lands passed on to mother. Father’s brothers oppose the mother’s act of registering the land in her name, saying the lands are reservable.

Held:

An ascendant who inherits from a descendant acquires the inheritance by virtue of a title perfectly transferring absolute ownership. But if a 3rd degree relative exists, then the right is

only limited that the legal title and dominion reside in him only while he lives.

Thus, mother can register because she is absolute owner of the lands, subject only to the limitation which arose because 3rd

degree relatives exist.

Parties:

1. Reservista/reservor- ascendant obliged to reserve

2. Praepositus – descendant from whom reservor acquired the property.

3. Reservatorios/reserves – 3rd degree relatives for whom the property is reserved.

4. Ascendant or brother or sister from whom praepositus inherited the property.

· All of these parties must be legitimately related, meaning they must be related legitimately to the praepositus.

· If praepositus is an adopted child, no reservation exists because adoption creates a personal relationship between adopter and adoptee only.

IV. NATURE

1. Of right of the reservista over the reserved property.

Edroso v. Sablan.—

a. Reservista's right over the property is that of ownership

b. Reservista's right is subject to a resolutory condition which is that the reservatorios exist at the time of the reservista's death. If there are, the reservista's right terminates and the property will pass to the reservatorios.

c. Reservista's ownership is alienable but subject to the same resolutory condition. The buyer's ownership is subject to the same resolutory condition.

d. Reservista's right of ownership is registrable.

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["Uncle German: -- "germanus" -- coming from the same seed; later came to mean

"brother."]

Error in the case: The case said "reservatorios cannot dispose of the expectancy."

According to the Sienes case, supra., which is correct, the expectancy can be alienated. _____________________________

Lunsod vs. Ortega, 46 Phil 664

SUPPLEMENTAL NOTES:

Idem; Reservatarios. —

The fourth person or persons involved in the reserva are the reservatarios or relatives of the descendantpropositus for whose benefi t the reservation is established. However,

in order that such relatives may be benefi ted by the reservation, it is indispensable that the following conditions must concur: first, such relatives must be legitimate relatives of the descendant-propositus within the third degree: second, they must belong to the line from

which the reservable property came; and third, they must survive the ascendant-reservista.

With regard to the fi rst condition, the Supreme Court in several cases, notably the cases of Florentino vs. Florentino, 40 Phil. 480, Cobardo vs. Villanueva, 44 Phil. 186, and Lunsod vs. Ortega, 46 Phil. 664, has constantly held that the degree of relationship must be counted from the descendant-propositus, because it is only upon his death that the property becomes reservable. This doctrine is in conformity with the opinion of the great majority of Spanish commentators. Consequently, the only persons who can qualify as reservatarios are the following:

(1) First degree relatives —

This can only refer to the legitimate father or mother of the descendant-propositus, since

it is evident that when an ascendant inherits from a descendant either as a compulsory heir or as an intestate heir, it is because the descendant has no legitimate descendants of his own, or, if he has, they cannot inherit from him because of disinheritance, incapacity

or repudiation.

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(2) Second degree relatives —

This can only refer to the grandparents as well as to the brothers and sisters of the full or half blood of the descendant-propositus belonging to the line from which the reservable property came.

(3) Third degree relatives –

This can only refer to the greatgrandparents, uncles or aunts (brothers and sisters of the full or half blood of the propositus’ father or mother), and nephews or nieces (children of the propositus’ brothers or sisters of the full or half blood) belonging to the line from which the reservable property came.

With regard to the second condition, the expression “line from which the property came” has always been understood as referring to the paternal line as opposed to the maternal line, or vice versa and not to that which is constituted by a series of degrees which may be either direct or collateral. This interpretation is of course logical in view of the fact that reserva troncal or lineal aims at maintaining as much as possible absolute separation between the paternal and maternal lines in order to prevent property which belongs to one line from passing to a stranger through the agency or instrumentality of the other line.64 There is, however, a confl ict of opinion among commentators on the question of whether the paternal line or maternal line as contemplated by the Code should be broadly construed to refer to the paternal or maternal line of the descendant-propositus from which the reservable property came without any qualifi cation whatsoever so that anyone who belongs

to such line is qualifi ed to be a reservatario or should be strictly construed to refer specifi cally to the sub-line or branch within such paternal or maternal line so that only one who belongs to such branch is qualifi ed to be a reservatario.

Thus, if the descendant-propositus had acquired the property by gratuitous title from his deceased paternal grandfather, and upon his death the property passed to his mother by operation of law, for whose benefi t should the property be reserved? Is it reserved for every relative of the descendantpropositus within the third degree in the paternal line, although the relative may not be related by consanguinity to the source or origin of the property, or is it necessary that we shall also have to consider the branch from which the property came so that the relative must not only be related by consanguinity to the descendant-propositus, but also to the source or origin of the property? Suppose that when the ascendant-reservista dies, the only survivor among the relatives of the descendant-propositus who are within the third degree and who belong to the paternal line is the paternal grandmother, shall she be entitled to the reservable property? According to one view as advocated by Manresa, since the law merely states that the reservatario should belong to the line from which the reservable property came without any qualifi cation whatsoever, it is clear

that she would be entitled to the property. According to another view as advocated by Sanchez Roman, which we believe is more in conformity with the nature and purpose of the reserva, since she is not related by consanguinity to the origin of the property, but only

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by affi nity, she cannot be considered as belonging to the line from which the said property came. Otherwise, if she had remarried and, subsequently, she had children out of such marriage, such children would also be qualifi ed as reservatario thus frustrating altogether

the very purpose of the reservation. Consequently, the applicable rule may be stated as follows: The reservatario or person for whose benefi t the property is reserved must not only be a relative by consanguinity of the descendant-propositus within the third degree,

but he must also be a relative by consanguinity of the source or origin of the property. If the origin of the property is a brother or sister of the fullblood, the question of line is unimportant. This is so because in such case there is no way by which we would be able to determine the “line from which the property came.” However, if the origin is a brother or sister of the half-blood, the common parent or ascendant must always be considered. If the common ascendant is the father, the property is reserved only for the relatives on the father’s side; if the common ascendant is the mother, the property is reserved only

for the relatives on the mother’s side.

Problem No. 1 —

In 1970, O, a son of A by his fi rst wife, B, donated a valuable lot located in Metro Manila to his halfbrother, P, a son of A by his second wife, C. In 1975, both A and O were killed in a vehicular accident. In 1978, P died intestate. The lot passed to his mother, C, who was the only intestate heir. In 1980, C also died intestate. The lot is now claimed by: (1) X, a brother of A; (2) Y, a sister of B; and (3) Z, a sister of C. Who is entitled to the property? Why?

Answer —

X alone is entitled to the property. Undoubtedly, the lot is reservable within the meaning of Art. 891 of the Civil Code. All of the requisites of reserva troncal are present. In the fi rst place, the property had been acquired by operation of law by an ascendant (C) from his descendant (P) upon the death of the latter; in the second place, the property had been previously acquired by gratuitous title by the descendant (P) from a brother (O); and in the third place, such descendant (P) died without any legitimate issue in the direct descending line who can inherit from him. Conse quently, when the property passed by operation of law to C, the latter was obliged to reserve it for the benefi t of relatives of P who are within the third degree and who belong to the line from which the reservable property came.

The real question, therefore, is — who, among the three claimants can qualify as reservatorio or reservee?

In order to answer this question, two tests should be applied. They are: fi rst, is the claimant a relative of the descendant-propositus (P) within the third degree; and second, does he belong to the line (line of O) from which the reservable came? Applying these tests to the

298 | P a g e

case at bar, it is clear that Y cannot qualify because she is not even a relative of the descendant-propositus, P. Neither can Z qualify because she does not belong to the line from which the property came. She is not related by consanguinity to O. But

X can qualify. He is not only a relative of P (being a paternal uncle) within the third degree; he also belongs to the line from which the reservable property came. Therefore, he alone shall be entitled to the property. (pg 264)

Rights of Reservista. —

Since the ascendant-reservista actually acquires the ownership of the reservable property upon the death of the descendant-propositus subject to the resolutory condition that there must exist at the time of his death relatives of the descendant who are within the third degree and who belong to the line from which the property came, it is clear that all of the

attributes of the right of ownership, such as enjoyment, disposal and recovery, belong to him exclusively, although conditional and revocable.74 He can, therefore, alienate or encumber the property if he so desires, but he will only alienate or encumber what he had and

nothing more because no one can give what does not belong to him. As a consequence, the acquirer will only receive a limited and revocable title. Therefore, after the death of the ascendant, the reservatarios may then rescind the alienation or encumbrance, because the

condition to which it is subject has already been fulfi lled.

Obligations of Reservista. — The obligations of the ascendant- reservista are:

(1) To make an inventory of all reservable property;

(2) To appraise the value of all reservable movable property;

(3) To annotate in the Registry of Property the reservable

character of all reservable immovable property; and

(4) To secure by mortgage

(a) the restitution of movable property not alienated,

(b) the payment of damages caused or which may be caused by his fault or negligence,

(c) the return of the price which he has received for movable property alienated, or the

payment of its value at the time of its alienation, if such alienation was made by gratuitous title, and

(d) the payment of the value of immovable property validly alienated.76( page 273)

( from COMMENTS and JURISPRUDENCE)

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__________________________________________________

Nieva vs. Alcala, 41 Phil 915

DIGESTED CASE: Nieva v. Alcala (1920)

FACTS:

Juliana Nieva, the natural mother of Segunda Maria Nieva, married

Francisco Deocampo. Of said marriage Alfeo Deocampo was born.

Juliana died intestate on April 19, 1889, and her son, Alfeo Deocampo,

inherited from her ab intestate, the parcels of land in question.

Alfeo died intestate and without issue on July 7, 1890. Thus, the lands

passed to his father, Francisco, by intestate succession. Thereafter,

Francisco married Manuela Alcala, of which marriage was born Jose

Deocampo.

Francisco died on August 3, 1914, whereupon his widow and son took

possession of the lands in question.

On September 30, 1915, Segunda, as acknowledged natural daughter of

Juliana, instituted the present action for the purpose of recovering from the

parcels of land in question, invoking the article 811 of the Civil Code.

Issue:

Whether or not an illegitimate relative within the 3rd degree is entitled to

the reserva troncal?

Held:

Manresa, in determining the persons in whose favor the reservation is

established, says: "Persons in whose favor the reservation is established. - … In the

interpretation of article 811 … the reservation is established in favor of the parents who are within the third degree and belong to the line from which the properties came. "It treats of blood relationship… It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what this article

300 | P a g e

intends to prevent. "It also treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and vice versa, from which it must be deduced that natural parents neither have the right to inherit from legitimate ones; the law in the article cited establishes a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family." Scaevola, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 i6 a privilege of the legitimate family.)"

Article 943, above referred to by Manresa, provides as follows:

"A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child."

To hold that the appellant is entitled to the property left by her natural

brother, Alfeo Deocampo, by operation of law, would be a flagrant violation

of the express provisions of the foregoing article (943).

_______________________________________

SUPPLEMENTAL NOTES:

Who are the parties in the reserva troncal?

1. Origin or Mediate Source

2. Prepositus

3. Reservista (Reservor)

4. Reservatarios (Reservees)

Is it necessary for the purposes of reserva troncal to know how the Origin acquired the property?

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No. It does not matter who the owner of the property was before it was acquired by the Origin.

Does the reserva troncal apply when one or more of the relationships between the parties are illegitimate?

No. All relationships among the parties must be legitimate. The provisions of Article 891 do not apply to legitimate relatives (Nieva vs. Alcala, 41 Phil. 915 [1920]).

Personal Element. —

Reserva troncal presupposes a great complexity of personal elements. They are as follows:

(1) The ascendant, brother or sister, otherwise known as the origin of the property, from whom the descendant-propositus had acquired the property by gratuitous title;

(2) The descendant-propositus from whom the ascendant reservista in turn had acquired the property by operation of law;

(3) The ascendant-reservista who is obliged to reserve the property; and

(4) The relatives of the propositus, otherwise known as the reservatarios, who are within the third degree and who belong to the line from which the property came and for whose benefi t the reservation is constituted.

It is, however, an indispensable requirement that all of these personal elements must be joined by the bonds of legitimate relationship. In other words, reserva troncal is possible only in the legitimate family.

Nieva vs. Alcala

4 Phil. 915

The property here in question was inherited by operation of law by Francisco de Ocampo from his son Alfeo de Ocampo, who, in turn, had inherited it, in the same manner, from his

mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo de Ocampo, and she belongs to the same line from which the property in question came. Was Francisco de Ocampo obliged by law to reserve said property for the benefi t all the plaintiff, and illegitimate relatives within the third degree of Alfeo de Ocampo? If he was, then, upon his death, the plaintiff and not his son the defendant Jose de Ocampo, was entitled to the said property; if he was not, the plaintiffs’ action must fail. Answering the question in the negative, the Supreme Court, held:

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“This question, so far as our investigation shows, has not been decided before by any court or tribunal. However, eminent commentators of the Spanish Civil Code, who have devoted

their lives to the study and solution of the intricate and diffi cult problems that may arise under the provisions of the Code, have dealt with the very question now before us and are unanimous in the opinion that the provisions of Article 811 (now Art. 891) apply only to legitimate relatives. One of such commentators, undoubtedly the best known of them all, is Manresa. We believe we can do not better than to adopt his reasons and conclusions,

in deciding the question before us. In determining the persons who are obliged to reserve under Article 811 (now Art. 891), he says:

“‘Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant? Article 811 (now Art. 891) does not distinguish. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon the legitimate ascendants.

“‘Let us not overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether it admits only the bond established

by the acknowledgment between the father or mother who acknowledged and the acknowledged children. However it may be, it may be stated as an indisputable truth that in said Code, the legitimate relationship forms the general rule and natural relationship the exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or parents, of ascendants or descendants, and in them reference is of course made to those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural parents.

“‘Articles 809 (now Art. 889) and 810 (now Art. 890) themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants? They evidently establish the legitime of the legitimate ascendants included as forced heirs in number 2 of Article 807 (now Art. 887). And Article 811 (now Art. 891) continues to treat of this same legitime. Therefore, the place which Article 811 (now

Art. 891) occupies in the Code is proof that it refers to legitimate ascendants.

--------------

The ORIGIN Discussed

(a) The origin of the property must be an ascendant or brother or sister.

(b) The origin must be a LEGITIMATE relative because reserva troncal exists only in the legitimate family. (See Niena v. Alcala, 41 Phil. 915; Centeno v. Centeno, 52 Phil. 332; Director of Lands v. Aguas, 63 Phil. 279).

(c) The transmission from the origin to the propositus must be by gratuitous title.

Illustrative Problem:

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A mother gave her son a sweepstakes ticket. Said ticket fortunately won fi rst prize. On the child’s death, the money went to the child’s only surviving relative, his father. Is the money subject to reserva troncal?

ANS.:

No, because the fi rst prize came from the Philippine Charity Sweepstakes Offi ce, not from the mother who was never the owner of said prize. (See 6 Manresa 300-301). (Of course, it would be different if the mother had given the money to her son only AFTER she had won

the money; moreover, in the original problem presented, even if the money came only after the gift had been given, there would be reserva troncal — since this of course did not come from the sweepstakes ticket offi ce.).

[NOTE:

The same principle applies to proceeds from an insurance. It has been held that said proceeds do not partake of a donation.].

The reservee must be a legitimate relative of the origin and propositus.

Nieva v. Alcala

41 Phil. 915

FACTS:

Juliana, with an acknowledged natural daughter, married Francisco. Their union resulted in a

common child. When Juliana died, some of her properties were inherited by said common child, who then died without issue. The property was now inherited intestate by the

father, Francisco. When Francisco died, the acknowledged natural daughter of Juliana claimed the property as a reservee in a case of reserva troncal.

ISSUE:

Is the acknowledged natural daughter entitled to the property?

304 | P a g e

HELD:

No, because she was an illegitimate, not a legitimate daughter of Juliana — Art. 891 applies only to legitimate relatives.

---------

BAR QUESTION

Does the reserva mentioned in Art. 891 of the Civil Code apply in favor of all the relatives within the 3rd degree belonging to the line from which the property came, whether they be legitimate or illegitimate?

ANS.:

The reserva favors only the legitimate relatives (Nieva v. Alcala, 41 Phil. 915) and even then, preference is given to the direct line as against the collateral line, and the rule of “nearer excludes the farther” also applies. (Florentino v. Florentino, 40 Phil. 480).

Nieva and Alcala vs. Alcala

Facts:

Mother died, son inherited property. Son died so Father inherited same property. The natural daughter of Mother wants property to be reserved.

Held:

No, reservation in favor of natural daughter because Art. 943 says that illegitimate and natural children cannot inherit from the relatives of their illegitimate parents. Consequently, they cannot inherit indirectly through reserva troncal.

· It is essential that the ascendant, brother or sister from whom the property came from should be the OWNER BY LUCRATIVE TITLE of such property at the time of the

acquisition of the praepositus. Hence, the proceeds from an insurance policy by the ascendant which is received by the praepositus is not reservable.

· Reserva troncal also applies to brothers and sisters whether half-blood or full blood because all are legitimate and the reserva is established in favor of the relatives that pertain

305 | P a g e

to the line from where the brother or sister, origin of the property, comes from; and since what is involved are lines, then the double tie is immaterial.

· The praepositus must acquire the property from the original owner by gratuitous title (donation or inheritance).

· The praepositus is also called the arbiter of the reserve because the issue on whether there would be a reserva or not depends entirely on the will of the praepositus, who may choose to alienate the property.

________________________________________________

DIGESTED CASE# 2: Nieva v. Alcala

FACTS:

- Juliana Nieva married Francisco Deocampo and with whom she begot a son named Alfeo Deocampo. Juliana died intestate and her son Alfeo inherited from her several

parcels of land. However, Alfeo died intestate and without issue, so the aforementioned parcels of land passed to his father Francisco. Francisco subsequently married Manuela

Alcala, with whom he had a son, Jose Deocampo. When Francisco died, his widow and his son took possession of the said lands.

- Segunda Maria Nieva sought to recover the parcels of land in question, as she is the acknowledged natural daughter of Juliana. According to her birth records, Juliana gave birth

to her and lived with her before Juliana’s marriage to Francisco. Segunda was treated and publicly exhibited as Juliana’s legitimate daughter.

ISSUE:

Whether or not the law on reserva troncal applies to illegitimate relatives.

HELD:

No. While there are no previous cases on the subject, the Court thought it proper to adopt the writings of Manresa and Scaevola on the matter.

306 | P a g e

- While the provision of law does not make a distinction, it has to be recognized that this is so because the legitimate relationship forms the general rule and the natural

relationship the exception; which is the reason why, the law in many articles, speaks only of children or parents, or ascendants and descendants, and in them reference is of

course made to those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not speak of ascendants, brothers or parents but of natural ascendants, natural brothers or natural parents. Thus, as the law does not qualify, the general rule applies that it only refers to legitimate ascendants.

- The provision on reserva troncal treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which

proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and

only in favor of that line is the reservation established. Remember: the object is to protect the patrimony of the legitimate family.

__________________________________________________________

DIGESTED CASE #3: Nieva v. Alcala

+Juliana Nieva ♥ +++Francisco de Ocampo ♥ Manuela Alcala

Segunda Ma. Nieva ++Alfeo Jose

(illegitimate) (2 parcel of land)

FACTS:

Plaintiff, Segunda Ma. Nieva, claiming to be an acknowledged natural daughter of Juliana Nieva [baptismal; birth]

and was reared as legal daughter, sought recovery of the property invoking Art. 811: “Any ascendant who inherits from

his descendants any property acquired by the latter gratuitously from some other descendant, or from a brother or sister,

is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within

the third degree belonging to the line from which such property came.

307 | P a g e

CFI: an illegitimate relative has no right to the reserve troncal

HELD:

Affirmed. Though the provision does not distinguish, the intent of the legislature shows that it applies only to legitimate relatives.

(1) Art. 809 and 810 establish the legitime of legitimate ascendants. Therefore, the place

which Art. 811 occupies is proof that it refers only to legitimate ascendants;

(2) the principle which underlies Art. 811- property should not pas, by reason of new

marriage, out of the family to which they belonged.

______________________________________

Florentino vs. Florentino, 40 Phil 480

DIGESTED CASE: Florentino vs Florentino

GR L-14656 November 15, 1919

Facts:

· A complaint was filed alleging that Apolinario Florentino (the deceased) during his lifetime first married Antonia De Leon and begotten nine children; That after the death of Antonia, he married for the second time Severina De Leon with whom he had two children; Apolinario died and was survived by his second wife Severina and the ten children from the first and second marriage.

· Apolinario left a will instituting as his universal heir the ten children, the Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages.

· Apolonio Florentino III, the posthumous son of the second marriage, died. His mother, Severina Faz de Leon, succeeded to all his property described in the complaint. Severina died and left a will instituting as her universal heiress her only living daughter. That daughter took possession of all the property left at the death of her mother Severina.

Issue:

Whether the property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon.

308 | P a g e

Held:

It is a reservable property.

The property came, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino.

But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios is unlawful, null and void, It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms parts of the legitime pertaining to Mercedes Florentino. The legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision.

__________________________________________________________

DIGESTED CASE#2: FLORENTINO v FLORENTINO

40 PHIL 480 TORRES; November 15, 1919

NATURE

Appeal from an order of the Court of First Instance of Ilocos Sur

FACTS

- Apolonio Jr.’s first marriage to Antonia produced nine children. Antonia died so

Apolonio contracted a second marriage with Severina with whom he had two children

Merces and Apolonio III.

- Out of Apolonio’s children by Antonia, three remained unmarried until their

respective deaths. The petitioners in this case are the surviving children of Apolonio’s

children by Antonia along with the heirs of Apolonio’s other married children who had

since died.

- Apolonio died on February 13, 1890, survived by his window Severina and his ten

children. His second child Apolonio III by Severina was born after his death.

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- On January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will

before the notary public of Ilocos Sur, instituting as his universal heirs his ten children,

his widow Severina and his yet unborn son Apolonio III. He declared that his propery

should be divided equally among his children.

- Among the properties received by Apolonio III were the properties marked A, B, C, D,

E and F. Apolonio III died in 1891 and his mother succeeded to all his property

described in the complaint. When Severina died, she left a will designating her

daughter Mercedes as the universal heiress.

- Mercedes took possession of her mother’s property, including the properties marked

A to F which Severina inherited from her son. Mercedes had been gathering the fruits

of the said properties for herself.

Petitioners’ Claims:

- The complainants argue that they should each be entitled to 1/7 of the fruits of the

said properties on the ground that Severina inherited the property from her son

Apolonio III as reservable property. The properties then passed on to her daughter

Mercedes who was the former’s forced heiress.

- The complainants amicably asked Mercedes for their corresponding share but

Mercedes has refused to give them their alleged portion.

Respondent’s Comments:

- The cause of action is based on the obligation of the widow to reserve the property

she inherited from her deceased son who, in turn, inherited the property from is father

Apolonio Jr.

- The object of the CC articles on reservation (then A811 and now A891 in the NCC) is

to avoid he transfer of said reservable property to those extraneous to the family of

the original owner.

- Since the property passed on to Mercedes, a legitimate daughter of Apolonio Jr. and

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his second wife Severina, it cannot be said that the property passed on to strangers.

- While in the possession of Severina, the property had ceased to become reservable

because Severina lawfully inherited the property in question and Mercedes, being

Severina’s heir, had acquired the right to the said property.

- Mercedes Florentino is a forced heiress of her mother so there is no property

reserved for the plaintiffs since there is a forced heiress entitled to the property left by

the death of the widow Severina who never remarried.

- The CFI judge absolved Mercedes from the complaint.

ISSUE

WON the property in question is reservable property

HELD

YES

Ratio 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. 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.

Reasoning

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- Even if Severina left in her will said property, together with her own, to her only

daughter and forced heiress, Mercedes Florentino, nevertheless this property had not

lost its reservable nature inasmuch as it originated from the common ancestor of the

litigants, Apolonio Jr.

- The right of the nearest relative, called reservatario, over the property which the

reservista (person holding it subject to reservation) should return to him, excludes

that of the one more remote. The right of representation cannot be alleged when the

one claiming 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

from.

- Nevertheless there is right of representation on the part of reservatarios who are

within the third degree, mentioned by law, as in the case of nephews of the deceased

person from whom the reservable property came. These reservatarios have the right

to represent their ascendants (fathers and mothers) who are the brothers of the said

deceased person and relatives within the third degree.

- In this case it is conceded without denial by defendants, that the plaintiffs are the

legitimate children of the first marriage of the deceased Apolonio Jr. to Antonia. There

are then seven "reservatarios" who are entitled to the reservable property left at the

death of Apolonio III: Encarnacion, Gabriel, Magdalena; his three children, Jose,

Espirita and Pedro who are represented by their own twelve children respectively; and

Mercedes Florentino, his daughter by a second marriage.

_______________________________________________

DIGESTED CASE# 3: Florentino v. Florentino

Antonia Faz de Leon ♥ Apolonio Florention II ♥Severina

9 children Mercedes Apolonio III

(3 died single) (posthumuous)

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FACTS:

In 1890, Apolonio II died leaving a notarial will. He was survived by his ten children and his widow as heirs. Apolonio III received in the partition of the subject property. When Apolonio III died, the said property were inherited by his mother Severina, who latter died, leaving a will instituting her only daughter as her universal heiress. Herein appellants demands from Mercedes to deliver their corresponding share in the reservable property but Mercedes refused. CFI dismissed the complaint of specific performance.

HELD:

REVERSED. Even if Severina left in her will said property together with her own property to her only daughter, nevertheless, this property had not lost their reservable nature in as much as it originated from the common ancestor of herein appellants. The property was inherited by the son and was transmitted by operation of law to his mother.

Any ascendant who inherits from his descendant any property while there are living within the 3rd degree relative of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. But if afterwards, all of such relative die, the said property become 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 legal succession. There are seven reservatoris who are entitled to the reservable property left at the death of Apolonio III:

(1) 3 children of the 1st marriage;

(2) 3 children who are represented by their own children (nephews/ nieces);

(3) Mercedes

All of the appellants are the relatives of the posthumous son within the third degree. Hence, they are entiled as reservatarios to the property which came from the common ancestors.

_________________________________________________

DIGESTED CASE#4: Florentino v. Florentino

- Apolonio II married Antonia with whom he has 9 children (Encarnacion, et. al. – the plaintiffs in this case). Antonia died.

- Apolonio II again married. This time with Severina and had 2 children, Mercedes and Apolonio III, the latter being born after the father’s death.

- The father left a will instituting all his children from both marriages and Severina as the universal heirs.

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- Apolonio III died ahead of his mother and the latter succeeded to all the son’s property. Upon the death of Severina, Mercedes succeeded her and the property she received included those which her mother received from Apolonio III.

- The plaintiffs (which include the children of the deceased brothers and sisters of Encarnacion who inherit by virtue of their right to representation) now claim that the property and thus, they are each entitled to 1/7 of the fruits of the reservable property.

- Defendants demurred claiming that the object of the law is to avoid the transfer of the reservable property to those extraneous to the family of the owner. They claim that since

the property was transferred to Mercedes (who was part of the family), the object of the law has not been violated and thus the property has lost its reservable character.

WON the property was reservable.

- YES. Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes, nevertheless this property had not lost its

reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same

(by operation of law) to his legitimate mother and ascendant, Severina.

- Severina was duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line

from which such property came.

- As to the children of the brothers and sisters of Encarnacion, SC held that there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third

degree.

- If this property was in fact clothed with the character and condition of reservable property when Severina inherited same from her son Apolonio III, she did not thereby acquire

the dominion or right of ownership but only the right of usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes.

- According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to

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reserve and preserve same for certain designated persons who, on the death of the said ascendants reservists acquire the ownership of said property

- Said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant-reservists, acquire in fact the right of reservatarios (person for whom property is reserved), and are relatives, within the third degree, of the descendant from

whom the reservable property came.

- Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista) in which case said reservable property lossessuch character.

________________________________________________

SUPPLEMENTAL NOTES:

Doctrine of Florentino vs. Florentino,

"Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest ( prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario" (reservee). This means that as long as during the reservor's lifetime and upon his death, there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the

property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded.

It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa, subject to the condition that they must survive the reservor.

FLORENTINO VS FLORENTINO 40 PHIL 480

· Upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree.

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And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews. · nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. ... .

Does the rule of representation apply in the reserva troncal?

As in intestate succession, the rule of preference of degree among reservatarios is qualified by the rule of representation – however such applies only up to the third degree of consanguinity. (Florentino vs Florentino, 40 Phil. 480 [1919])

Actually, there will be only one instance of representation among the reservatarios – a case of the prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister.

Problem —

Before his death in 1945, O donated to his son, P, a parcel of land. Upon the death of P in 1960 without any legitimate issue in the direct descending line, the land passed to his mother, R in accordance with the laws of intestate succession. The latter died in 1970 without a will.

(1) Granting that the property is reservable in accordance with Art. 891 of the Civil Code, who shall be entitled to it if the reservista, R, is survived by the following relatives of the descendant-propositus, P: (a) A, grandfather in the paternal line; (b) B and C, uncles in the paternal line; (c) F and G, children of D by a prior marriage, and, therefore, brothers of the

half blood, of P; (d) F and G, children of O and R, and, therefore brothers of the full blood of P; and (e) H and I, children of F, and, therefore, nephews of P?

Answer —

While it is true that all of the survivors in this particular case can qualify as reservatarios, since all of them are relatives of the descendant-propositus, P, within the third degree and they all belong to the line from which the reservable property came, yet the property cannot be given to all of them. This is so because the rules of intestate succession shall have to be applied. The reason for this is that in reserva troncal, in reality, the reservatario or reservatarios inherit from the descendant- propositus, not from the ascendant-reservista. Since, in intestate succession, those in the direct ascending line shall exclude those in the collateral line, and since A is the only member of the direct ascending line among the survivors, therefore, the entire reservable property shall pass to him automatically

and by operation of law upon the death of R.

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(3) Suppose that F died before the reservista, R, so that the only survivors are B, C, D, E, G, H and I, who shall be entitled to the reservable property?

Answer —

Only D, E, G, H and I shall be entitled to the reservable property. B and C are of course excluded because they are merely relatives of the third degree, while D, E and G are

relatives of the second degree. While it is true that H and I, who are nephews of P, should also be excluded because they are also relatives of the third degree, yet following the doctrine enunciated by the Supreme Court in Florentino vs. Florentino, they cannot be excluded because they shall represent their deceased father, F, in the reservable property. Even in reserva troncal, the right of representation is recognized, provided that the representative is a relative of the descendant-propositus within the third degree, and provided further, that he belongs to the line from which the reservable property came.

Florentino vs. Florentino

40 Phil. 480

In 1908, Severina Foz de Leon died leaving by will her entire estate including the property, which is the subject matter of this litigation, to her only daughter and compulsory heir,

Mercedes Fiorentino. The records show that she inherited the property in question from her deceased son Apolinio Florentino III, who, in turn, had inherited it from his deceased father Apolinio Florentino II. The right of the instituted heir, Mercedes Florentino, to the property is now contested by the children and grandchildren of Apolonio Florentino II by a previous marriage on the ground that the said property is reservable in accordance with the provision of Art. 811 (now Art. 891) of the Civil Code and that they, together with Mercedes Florentino, are entitled to the property as reservatarios. Declaring that the property is

reservable, and that the right of representation is applicable so long as the representatives are relatives of the descendant-propositus within the third degree, the Supreme Court held:

“Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative over the property which the reservista should return to him, excludes that of the ones more remote. The right of representation cannot be alleged when the one claiming the 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 (now Art. 891) 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. Nevertheless, there is right of representation on the part of reservatarios who are within the third degree, as the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants who are the brothers of the said deceased person and relatives within the third degree in accordance

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with Article 811 of the Civil Code (now Art. 891).”

-------

To become reservees, is it enough to be within the 3rd degree at the time the propositus dies (beginning ofreserva), or should one be such a relative at the time the reservor dies (here, the right really becomes certain and definite)?

ANS.:

At the moment the propositus dies, all the relatives within the 3rd degree have an EXPECTANCY.

At the moment the reservor dies, all those surviving have a DEFINITE RIGHT (subject however to the rules of “preference of the direct line to the collateral line” and “the nearer relatives exclude the farther’’). (See 6 Manresa 296-297; see also Florentino v. Florentino, 40 Phil. 480).

(j) Thus, if there be two reservees (reservatarios), one of the 2nd degree and the other of the 3rd degree, the former gets ALL the reservable properties, without prejudice however to the right of representation, but the representative must himself be within the 3rd degree from the propositus. (See Florentino v. Florentino, 40 Phil. 480).

[NOTE:

In the said case of Florentino v. Florentino, supra, the Supreme Court held: Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative reservatario, over the property which the reservista (person holding it subject to reservation) should return (deliver) to him excludes that of the one more remote. The right of representation

cannot be alleged when the one claiming same as a 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 Art. 891 is in the highest degree personal and for the exclusive benefi t 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.

“In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship,

nevertheless, there is a right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with Art. 891 of the Civil Code.’’].

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[NOTE:

The above decision thus sets aside the theory of RESERVA INTEGRAL, which would allow ALL the relatives within the third degree to get the reserved property, per capita, and individually, each in his own right. (See 14 Scaevola 287).].

Is the reserved property part of the reservista’s estate which can be transmitted to his heirs or which may be used to pay the debts of his estate?

A reservista is nothing but a life usufructuary or a fiduciary of the reservable property received. Reservable property neither comes, nor falls under the absolute dominion of the ascendant who inherits and receives same from descendant, therefore does not form part

of his property nor become the legitime of his forced heirs. It becomes his own property only in case that all relatives of his own descendant shall have died in which case said reservable

property losses such character [Florentino vs. Florentino, 40 Phil. 480].

Is there representation among reservatorios?

As in intestate succession, the rule of preference of degree among reservatorios is qualified by the rule of representation. If the claimants of the property after the death of

the reservor are brothers and sisters of the prepositus and nephews and nieces (children of other brothers and sisters who have predeceased the reservoir), the right of representation is applicable as long as the representatives are relatives to the prepositus within the third degree (Florentino vs. Florentino, 40 Phil. 489).

Florentino v. Florentino.—

Representation only in favor of nephews and nieces of deceased brothers and sisters of the prepositus. The case is wrong, however, when it did not distinguish between full and half blood nephews and nieces.

B. Three relationships

1. Mediate Source.-- Prepositus-- ascendant or brother or sister

2. Prepositus.-- Reservista -- descendant - ascendant relationship

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3. Reservatorio -- Reservista

Mediate Source -- blood relation

Prepositus -- within the 3rd degree

All relationship must be legitimate.

In effect, this requirement punishes legitimate relations bec. if the relation is illegitimate,

there is no obligation to reserve.

____________________________________________________

Padura vs. Baldovino, 104 Phil 1065 (can’t find the Fulltext)

DIGESTED CASE: PADURA v BALDOVINO

G.R. No. L-11960

REYES; December 27, 1958

NATURE

Appeal from order of CFI Laguna

FACTS

- Agustin Padura contracted two marriages during his lifetime. With his first wife

Gervacia Landig, he had one child, Manuel Padura. With the second wife, Benita

Garing, he had two children, Fortunato and Candelaria Padura.

- Agustin died on Apr 26, 1908, leaving a last will and testament, duly probated,

wherein he bequeathed his properties among his three children and his surviving

spouse, Benita Garing.

- Fortunato was adjudicated four parcels of land. He died unmarried on May 28, 1908,

without having executed a will; and not having any issue, the parcels of land were

inherited exclusively by his mother Benita.

- Benita was issued a Torrens Certificate of Title in her name, subject to the condition

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that the properties were reservable in favor of relatives within the third degree

belonging to the line from which said property came.

- On Aug 26, 1934, Candelaria died, leaving as her heirs her four legitimate children:

Cristeta, Melania, Anicia, and Pablo Baldovino (Oppositors-appellants)

- On Oct 6, 1940, Manuel also died, survived by his legitimate children Dionisia, Felisa,

Flora, Cornelio, Francisco, Juana, and Severino Padura (Petitioners-appellees)

- Upon the death of Benita (the reservista) on Oct 15, 1952, the heirs took possession

of the reservable properties. CFI Laguna declared the children of Manuel and

Candelaria to be the rightful reservees, and as such, entitled to the reservable

properties (the original reservees, Candelaria and Manuel, having predeceased the

reservista)

- The Baldovino heirs filed a petition seeking to have the properties partitioned, such

that one-half be adjudicated to them, and the other half to the appellees, allegedly on

the basis that they inherited by right of representation from their respective parents,

the original reservees.

- Padura heirs opposed, maintaining that they should all be deemed as inheriting in

their own right, under which, they claim, each should have an equal share.

(In essence, the Baldovino heirs, who are whole blood relatives of the reservista, were

contending that they should get more than their half-blood relatives, the Padura heirs.

They anchor their claim on Articles 1006 and 1008 of the Civil Code)

- trial court declared all the reservees, without distinction, “co-owners, pro-indiviso, in

equal shares of the parcels of land.”

ISSUE

WON the reserved properties should, as the trial court held, be apportioned among

the heirs equally.

HELD

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NO.

The nephews of the whole blood should take a share twice as large as that of the

nephews of the half blood.

- 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 (reservista). Article 891 of the Code provides:

ART 891. The ascendant who inherits from his descendant any property which the

latter may have acquired by gratuitous title from another ascendant, or a brother

or sister, is obliged to reserve such property as he may have acquired by

operation of law for the benefit of relatives who are within the third degree and

who belong to the line from which said property came.

- the purpose of the reserva troncal is accomplished once the property has devolved

to the specified relatives of the line of origin. But from this time on, there is no further

occasion for its application. In the relations between one reservatario and another of

the same degree, there is no call for applying Art 891 any longer; the respective share

of each in the reversionary property should be governed by the ordinary rules of

interstate succession.

- Florentino v Florentino (as restated in the case): upon the death of the ascendant

reservista, the reservable property should pass, not to all the reservatorios as a class,

but only to those nearest in degree to the descendant (prepositus), excluding those

reservatarios of more remote degree... And within the third degree of relationship

from the descendant (prepositus), the right of representation operates in favor of

nephews.

- Proximity of degree and right of representation are basic principles of ordinary

intestate succession; so is the rule that whole blood brothers and nephews are

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entitled to share double that of brothers and nephews of half-blood. If in determining

the rights of the reservatarios inter se, proximity of degree and the right of

representation of nephews are made to aply, the rule of double share for immedaite

collaterals of the whole blood should likewise be operative.

- in other words, reserva troncal merely determines the group of relatives

(reservatarios) 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 Art 891 does not specify otherwise. The reserva being an

exceptional case, its application should be limited to what is strictly needed to

accomplish the purpose of the law.

- even during the reservista’s lifetime, the reservatarios, who are the ultimate

acquirers of the property, can already assert the right to prevent the reservista from

doing anything that might frustrate their reversionary right: and for this purpose they

can compel the annotation of their right in the Registry of Property even while the

reservista is alive. This right is incompatible with the mere expectancy that

corresponds to the natural heirs of the reservista. It is also clear that the reservable

property is not part of the estate of the reservista, who may not dispose of them by

will, so long as there are reservatarios existing. The latter, therefore, do not inherit

from the reservista, but from the descendant prepositus, of whom the reservatarios

are the heirs mortis causa, subject to the condition that they must survive the

reservista.

_______________________________________________

SUPPLEMENTAL NOTES:

PADURA vs. BALDOVINO G.R. No. L-11960, December 27, 1958

FACTS: In an order, the Court of First Instance of Laguna in Special Proceedings declared all the reservees, without distinction, ―co-owners pro indiviso in equal shares of the parcels of land‖ subject matter of the suit.

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RULING: The appealed order was reversed and set aside. The reservatarios who are nephews of the full blood are declared entitled to a share twice as large as that of the nephews of the half-blood. Records are remanded to the court below for further proceedings.

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.)

What is the purpose of the reserva troncal?

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 to avoid its being dissipated… by the relatives of the inheriting ascendant (reservista). (Padura vs. Baldovino, G.R. No. L-11960, 27 December 1958)

The Supreme Court in the case of Gonzales vs. Court of First Instance (104 SCRA 479 [1981]), citing Spanish authorities, explains the purpose of the reserva troncal to be to avoid the danger that property existing for many years in a family’s patrimony might pas gratuitously to outsiders through the accident of marriage and untimely death. Further, it is meant to prevent outsiders from acquiring, through an accident of life, property which, but for such accident, would have remained in the family.

How to the reservatarios inherit? Stated differently, do they inherit equally or is there preference among them?

There is preference among the reservatarios. In the case of Padura vs. Baldovino (G.R. No.11960, December 27, 1958), it was ruled that, in line with the rules of intestacy, those

reservatarios nearer in degree of relationship to the prepositus will exclude those more remotely related. The reason for the application of rules of intestacy in determining the shares of the reservatarios are three-fold (1) because the application of the reserva troncal ends upon determination of the group of relatives to whom the property should be returned – beyond that, or more precisely, within the group, the rules of intestacy should apply, (2) because this interpretation is the more imperative in view of the Code’s hostility to successional reservas and reversions, and (3) because the reservatarios inherit from the prepositus and not from the reservista and hence, the rules of intestacy do not all of the sudden inapplicable just because of the momentary intervention of the reservista.

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(1) Granting that the property is reservable in accordance with Art. 891 of the Civil Code, who shall be entitled to it if the reservista, R, is survived by the following relatives of

the descendant-propositus, P: (a) A, grandfather in the paternal line; (b) B and C, uncles in the paternal line; (c) F and G, children of D by a prior marriage, and, therefore, brothers of the half blood, of P; (d) F and G, children of O and R, and, therefore brothers of the full blood of P; and (e) H and I, children of F, and, therefore, nephews of P?

Answer —

While it is true that all of the survivors in this particular case can qualify as reservatarios, since all of them are relatives of the descendant-propositus, P, within the third

degree and they all belong to the line from which the reservable property came, yet the property cannot be given to all of them. This is so because the rules of intestate succession shall have to be applied. The reason for this is that in reserva troncal, in reality, the reservatario or reservatarios inherit from the descendant- propositus, not from the ascendant-reservista. Since, in intestate succession, those in the direct ascending line shall

exclude those in the collateral line, and since A is the only member of the direct ascending line among the survivors, therefore, the entire reservable property shall pass to him automatically and by operation of law upon the death of R.

(2) Suppose that we eliminate A from the list of survivors, who shall be entitled to the reservable property?

Answer –

D, E, F and G shall be entitled to the reservable property. Since all of the survivors are collateral relatives, therefore, the rule of proximity, by virtue of which those nearest

in degree to the descendant-propositus shall exclude the more remote ones, shall apply. D, E, F and G are relatives of the second degree, while H and I are relatives of the third degree. Consequently, the former shall exclude the latter. With regard to the division of the property itself, since F and G are brothers of the full blood of P, while D and E are brothers of the halfblood, following the doctrine enunciated by the Supreme Court in Padura vs. Baldovino, the rule of intestate succession stated in Art. 1006 of the Civil Code, by virtue of which brothers and sisters of the full blood shall be entitled to a share double that of

those of the half blood, is applicable. Consequently, the property must be partitioned among D, E, F, and G in the proportion of 1:1:2:2. D and E shall, therefore, be entitled to 1/6 each of the property, while F and G shall be entitled to 2/6 or 1/3 each.

Padura vs. Baldovino

325 | P a g e

104 Phil. 1065

Agustin Padura contracted two marriages during his lifetime. With his fi rst wife, he had one child, Manuel, and with his second wife, Benita, he had two children, Fortunato and Candelaria. Agustin died in 1908, leaving all of his properties to Benita and the three children. Four parcels of land were adjudicated to Fortunato. Shortly thereafter, Fortunato died without a will. Not having any issue, the four parcels of land passed to his mother, Benita. In 1934, Candelaria also died, leaving as her only heirs four legitimate children, petitioners herein. In 1940, Manuel also died, leaving as his only heirs seven legitimate

children, oppositors herein. In 1952, Benita died. The children of Manuel and Candelaria were declared to be the rightful reservatarios. Subsequently, the children of Candelaria fi led the

instant petition seeking to have the reservable properties partitioned, such that 1/2 of the same be adjudicated to them on the basis that they inherit by right of representation. The children of Manuel fi led their opposition, maintaning that they (the 11 reservatarios) should all be deemed as inheriting in their own right, as a consequence of which, they should all inherit in equal shares. The question, therefore, is how shall the reservable properties be divided among the eleven reservatarios? Speaking through Justice J.B.L. Reyes, the Supreme Court held:

“The reservatarios nephews of the full blood are entitled to a share twice as large as that of the others in conformity with Arts. 1006 and 1008 of the Civil Code of the Philippines. 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 by the relatives of the inheriting ascendant (reservista). The stated purpose of the reserva is accomplished once the property has devolved to the specifi ed relatives of the line of origin. But from this time on, there is no further occasion for its application. In the relations between one reservatario and another of the same degree, there is no call for applying Art. 891 any longer; wherefore, the respective shares

of each in the rever sionary property should be governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class, but only to those nearest in degree to the descendant (propositus), excluding those reservatarios of more remote degree (Florentino vs.

Florentino, 40 Phil. 489-490; T. S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905). And within the third degree of rela tionship from the descendant (propositus), the right of representation operates in favor of nephews (Florentino vs. Florentino, supra).

“Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half-blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood

should be likewise operative. In other words, the reserva troncal merely determines the group of relatives (reservatarios) 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 Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstances that the reserva being an exceptional case,

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its application should be limited to what is strictly needed to accomplish the purpose of the law. The restrictive interpretation is the more imperative in view of the new Civil Code’s hostility to successional reservas and reversions, as exemplifi ed by the suppression of the reserva viudal and the reversion legal of the Code of 1889 (Arts. 812 and 968-980.)

“Even during the reservista’s lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that

might frustrate their reversionary right; and for this purpose they can compel the annotation of their right in the Registry of Property even while the reservista is alive (Ley Hipotecaria

de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of them by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 38 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the descendant-propositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista. Had the nephews of whole and half blood succeeded the propositus directly, those of full blood would undoubtedly receive a double share compared to those of the half-blood. Why then should the latter receive equal shares simply because the transmission of the property was delayed by the interrugnum

of the reserva? The decedent (causante), the heirs and their relationship being the same, there is no cogent reason why the hereditary portions should vary.”

Nephews and Nieces. —

If the only survivors are nephews and nieces of the full or of the half blood, such nephews and nieces shall succeed to the entire inheritance in their own right. Consequently,

the division of the estate shall be per capita.14 However, if some of them are of the full blood and the others are of the half blood, the rule of preference by reason of whole blood relationship shall be applied. In other words, those of the full blood shall be entitled to

a share double that of those of the half blood. Although this rule is not expressly stated by the Code, it can be inferred from Art. 1009, paragraph 2, which declares that in the absence of brothers and sisters or children of brothers and sisters, the other collateral relatives shall succeed to the estate without distinction of lines or preference among them by reason of relationship by the whole blood. From this provision, we can deduce the rule that if there are nephews and nieces surviving the decedent, relationship by the whole or half blood becomes material in the distribution of the estate. This view advocated by Manresa15 has been applied by our Supreme Court in Padura vs. Baldovino and in Bicomong vs. Almanza.16

Problem –

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Don died after executing a Last Will and Testament leaving his estate valued at P12 Million to his commonlaw wife Roshelle. He is survived by his brother Ronie and his half-sister Michelle.

(1) If Don failed to execute a will during his lifetime, as his lawyer, how will you distribute his estate? Explain.

(2) Assuming he died intestate survived by his brother Ronie, his half-sister Michelle, and his legitimate son Jayson, how will you distribute his estate? Explain. (2006)

Answer –

(1) After paying the legal obligations of the estate, I will give Ronie, as full-blood brother of Don, 2/3 of the net estate, twice the share of Michelle, the half-sister who shall receive 1/3. Roshelle will not receive anything as she is not a legal heir [Art. 1006, NCC].

(2) Jayson will be entitled to the entire P12 Million as the brother and sister will be excluded by a legitimate son of the decedent. This follows the principle of proximity where the nearer excludes the farther” (Suggested Answers to the 2006 Bar Examination Questions, PALS).

BAR QUESTION

Are the relatives within the 3rd degree referred to in Art. 891, entitled to the property subject to reservation, all at the same time and jointly, or are they subject to the

regular order of succession, whereby the relative nearer in degree excludes the farther ones?

ANS.:

Nearer excludes farther. (Florentino v. Florentino, supra).

[NOTE: In the case of Dionisia Padura, et al. v. Melania Baldovino, et al., L-11960, Dec. 7, 1958, the principal issue involved was: “where, upon the death of the reservor

the only surviving relatives of the descendant propositus are nephews and nieces some of them children of a sister of the FULL BLOOD, and other children of a brother of

the HALF BLOOD, how shall the reservable property be apportioned among the several reservees?”

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HELD:

Each of the children of the sister of the FULL BLOOD shall get double the share of each of the children of the brother of the HALF BLOOD. After the rule of reserve troncal has determined the group of relatives who constitute the reservees, the rules of intestate succession (Arts.

1006, 1008, 1009) should apply.]. (Incidentally, the Court should not have used the

terms “nephews of the full blood” and “nephews of the half blood.” In law, the half-blood relationship is used to refer only to brothers and sisters with one common parent).

If the deceased is survived by children of a predeceased FULL BLOOD sister, and by children of a predeceased HALF BLOOD brother, each of the fi rst group gets TWICE

the share of each of the second group. (Padura v. Baldovino, L-11960, Dec. 27, 1958).

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

· where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to

be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code.

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

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

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

Preference Among the Reservatarios

- Upon death of the ascendant reservista, the reservable property should pass, not to

all the reservatorios as a class, but only to those NEAREST in degree to the

descendant [prepositus], excluding those reservatarios of more remote degree. [Padura v. Baldovino]

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- In other words, the reserve troncal merely determines the group of relatives

[reservatarios] 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 Art891 does not specify otherwise.

- Thus, according to the Padura ruling, which subjects the choice of reservatarios to the

rules of intestate succession, those reservatarios nearer in degree of relationship to the Prepositus will exclude those more remotely related.

_____________________________________________

Riosa vs. Rocha, 48 Phil 737

DIGESTED CASE: Riosa vs. Rocha

48 Phil 737

February 18, 1926

Facts:

Maria Corral was united in marriage with the deceased Mariano Riosa, it being her first and only marriage and during which time she bore him three children named Santiago, Jose and Severina. The latter died during infancy and the other two survived their father, Mariano Riosa. Santiago Riosa, no deceased, married Francisca Villanueva, who bore him two children named Magin and Consolacion Riosa. Jose Riosa, also deceased, married Marcelina Casas and they had one child who died before the father, the latter therefore leaving no issue. Mariano Riosa left a will dividing his property between his two children, Santiago and Jose Riosa, giving the latter the eleven parcels of land described in the complaint. Upon the death of Jose Riosa he left a will in which he named his wife, Marcelina Casas, as his only heir.

The will of Jose Riosa was filed for probate. Notwithstanding the fact that Marcelina Casas was the only heir named in the will, on account of the preterition of Maria Corral who, being the mother of Jose Riosa, was his legitimate heir, I Marcelina Casas and Maria Corral, on the same date of the filing of the will for probate, entered into a contract by which they divided between themselves the property left by Jose Riosa, the eleven parcels of land described in the complaint being assigned to Maria Corral. Maria Corral sold parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to Marcelina Casas for the sum of P20,000 in a public instrument which was recorded in the registry of deeds. Marcelina Casas sold these eight parcels of land to Pablo

Rocha for the sum of P60,000 in a public document which was recorded in the registry of deeds. Pablo Rocha returned parcels No. 1, 2, 3, 4, and 6 to Maria Corral stating in the deed executed for the purpose that these parcels of land had been erroneously included in the sale made by Maria Corral to Marcelina Casas. The Court of first Instance denied the probate of the will of Jose Riosa, but on appeal this court reversed the decision of the lower court and allowed the will to probate.. The legal proceedings for the probate of the will and the

settlement of the testate estate of Jose Riosa were followed; and, at the time of the partition, Maria Corral and Marcelina Casas submitted to the court the contract of extrajudicial partition which they had entered into on May 16, 1917, and which was approved by the court, by order of November 12, 1920, as though it had been made within the

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said testamentary proceedings.

From the foregoing is appears that the eleven parcels of land described in the complaint were acquired by Jose Riosa, by lucrative title, from his father Mariano Riosa and that after the death of Jose Riosa, by operation of law, they passed to his mother Maria Corral. By virtue of article 811 of the Civil Code these eleven parcels of land are reservable property. It results, furthermore, that parcels 1, 2, 3, 4, 5, 6, 7, 8 and 9 still belong in fee simple to Maria Corral, and that parcels 10 and 11 were successively sold by Maria Corral to Marcelina Casas and by the latter to Pablo Rocha. Lastly, it appears that Magin and Consolacion Riosa are the nearest relatives within the third degree of the line from which this property came.

This action was brought by Magin Riosa, for whom the property should have been reserved, against Maria Corral, whose duty it was to reserve it, and against Marcelina Casas and Pablo Rocha as purchasers of parcels 10 and 11. Consolacion Riosa de Calleja who was also bound to make the reservation was included as a defendant as she refused to join as plaintiff.

The complaint prays that the property therein described be declared reservable property and that the plaintiffs Jose and Consolacion Riosa be declared reservees; that this reservation be noted in the registry of deeds; that the sale of parcels 10 and 11 to Marcelina Casas and Pablo Rocha be declared valid only in so far as it saves the right of reservation in favor of the plaintiff Magin Riosa and of the defendant Consolacion Riosa, and that this right of reservation be also noted on the deeds of sale executed in favor of Marcelina Casas and Pablo Rocha.

Issue:

Whether or not the property must be deemed transmitted to the heirs from the time the extrajudicial partition was made?

Held:

NO.

For the purposes of the reservation and rights and obligations created thereby, in connection with the relatives benefited, the property must be deemed transmitted to the heirs from the time the partition was approved by the court. When the deceased has left a will the partition of his property must be made in accordance therewith.

According to section 625 of the same Code no will can pass property until it is probated. And even after being probated it cannot pass any property if its provisions impair the legitime fixed by law in favor of certain heirs. Therefore, the probate of the will and the validity of the testamentary provisions must be passed upon by the court.

For the reasons stated, and without making any express finding as to the efficacy of the extrajudicial partition made by Maria Corral and Marcelina Casas, we hold that for the purposes of the reservation and the rights and obligations arising thereunder in connection with the favored relatives, the property cannot be considered as having passed to Maria Corral but from the date when the said partition was approved by the court.

In the transmission of reservable property the law imposes the reservation as a resolutory condition for the benefit of the reservees (article 975, Civil Code). The fact that the resolvable character of the property was not recorded in the registry of deed at the time that it was acquired by Marcelina Casas and Pablo Rocha cannot affect the right of the reservees, for the reason that the transfers were made at the time when it was the obligation of the reservor to note only such reservation

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and the reservees did not them have any right to compel her to fulfill such an obligation. Marcelina Casas, as well as Pablo Rocha, Knew of the reservable character of the property when they bought it.

They had knowledge of the provisions of the last will and testament of Mariano Riosa by virtue of which these parcels were transferred to Jose Riosa. Pablo Rocha was one of the legatees in the will. Marcelina Casas was the one who entered into the contract of partition with Maria Corral, whereby these parcels were adjudicated to the latter, as a legitimate heir of Jose Riosa. Pablo Rocha was the very person who drafted the contracts of sale of these parcels of land by Maria Corral to Marcelina Casas and by the latter to himself. These facts, together with the relationship existing between Maria Corral and Marcelina Casas and Pablo Rocha, the former a daughter-in-law and the latter a nephew of Maria Corral, amply support the conclusion that both of them knew that these parcels of land had been inherited by Maria Corral, as her legitime from her son Jose Riosa who had inherited them, by will, from his father Mariano Riosa, and were reservable property. Wherefore, the duty of Maria Corral of recording the reservable character of lots 10 and 11 has been transferred to Pablo Rocha and the reservees have an action against him to compel him to comply with this obligation.

________________________________________________

DIGESTED CASE: Riosa vs. Rocha

48 Phil 737

February 18, 1926

Facts:

Maria Corral was united in marriage with the deceased Mariano Riosa, it being her first and only marriage and during which time she bore him three children named Santiago, Jose and Severina. The latter died during infancy and the other two survived their father, Mariano Riosa. Santiago Riosa, no deceased, married Francisca Villanueva, who bore him two children named Magin and Consolacion Riosa. Jose Riosa, also deceased, married Marcelina Casas and they had one child who died before the father, the latter therefore leaving no issue. Mariano Riosa left a will dividing his property between his two children, Santiago and Jose Riosa, giving the latter the eleven parcels of land described in the complaint. Upon the death of Jose Riosa he left a will in which he named his wife, Marcelina

Casas, as his only heir. The will of Jose Riosa was filed for probate. Notwithstanding the fact that Marcelina Casas was the only heir named

in the will, on account of the preterition of Maria Corral who, being the mother of Jose Riosa, was his legitimate heir, I Marcelina Casas and Maria Corral, on the same date of the filing of the will for probate, entered into a contract by which they divided between themselves the property left by Jose Riosa, the eleven parcels of land described in the complaint being assigned to Maria Corral. Maria Corral sold parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to Marcelina Casas for the sum of P20,000 in a public instrument which was recorded in the registry of deeds. Marcelina Casas sold these eight parcels of land to Pablo Rocha for the sum of P60,000 in a public document which was recorded in the registry of deeds. Pablo Rocha returned parcels No. 1, 2, 3, 4, and 6 to Maria Corral stating in the deed executed for the purpose that these parcels of land had been erroneously included in the sale made by Maria Corral to Marcelina Casas.

The Court of first Instance denied the probate of the will of Jose Riosa, but on appeal this court reversed the decision of the lower court and allowed the will to probate.. The legal proceedings for the probate of the will and the settlement of the testate estate of Jose Riosa were followed; and, at the time of the partition, Maria Corral and Marcelina Casas submitted to the court the contract of extrajudicial partition which they had entered into on May 16,

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1917, and which was approved by the court, by order of November 12, 1920, as though it had been made within the said testamentary proceedings.

From the foregoing is appears that the eleven parcels of land described in the complaint were acquired by Jose Riosa, by lucrative title, from his father Mariano Riosa and that after the death of Jose Riosa, by operation of law, they passed to his mother Maria Corral. By virtue of article 811 of the Civil Code these eleven parcels of land are reservable property. It results, furthermore, that parcels 1, 2, 3, 4, 5, 6, 7, 8 and 9 still belong in fee simple to Maria Corral, and that parcels 10 and 11 were successively sold by Maria Corral to Marcelina Casas and by the latter to Pablo Rocha. Lastly, it appears that Magin and Consolacion Riosa are the nearest relatives within the third degree of

the line from which this property came.

This action was brought by Magin Riosa, for whom the property should have been reserved, against Maria Corral, whose duty it was to reserve it, and against Marcelina Casas and Pablo Rocha as purchasers of parcels 10 and 11. Consolacion Riosa de Calleja who was also bound to make the reservation was included as a defendant as she refused to join as plaintiff.

The complaint prays that the property therein described be declared reservable property and that the plaintiffs Jose and Consolacion Riosa be declared reservees; that this reservation be noted in the registry of deeds; that the sale of parcels 10 and 11 to Marcelina Casas and Pablo Rocha be declared valid only in so far as it saves the right of reservation in favor of the plaintiff Magin Riosa and of the defendant Consolacion Riosa, and that this right of reservation be also noted on the deeds of sale executed in favor of Marcelina Casas and Pablo Rocha.

Issue:

Whether or not the property must be deemed transmitted to the heirs from the time the extrajudicial partition was made?

Held:

NO

For the purposes of the reservation and rights and obligations created thereby, in connection with the relatives benefited, the property must be deemed transmitted to the heirs from the time the partition was approved by the court. When the deceased has left a will the partition of his property must be made in accordance therewith.

According to section 625 of the same Code no will can pass property until it is probated. And even after being probated it cannot pass any property if its provisions impair the legitime fixed by law in favor of certain heirs.

Therefore, the probate of the will and the validity of the testamentary provisions must be passed upon by the court. For the reasons stated, and without making any express finding as to the efficacy of the extrajudicial partition made by Maria Corral and Marcelina Casas, we hold that for the purposes of the reservation and the rights and obligations arising thereunder in connection with the favored relatives, the property cannot be considered as having passed to Maria Corral but from the date when the said partition was approved by the court.

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In the transmission of reservable property the law imposes the reservation as a resolutory condition for the benefit of the reservees (article 975, Civil Code). The fact that the resolvable character of the property was not recorded in the registry of deed at the time that it was acquired by Marcelina Casas and Pablo Rocha cannot affect the right of the reservees, for the reason that the transfers were made at the time when it was the obligation of the reservor to note only such reservation and the reservees did not them have any right to compel her to fulfill such an obligation. Marcelina Casas, as well as Pablo Rocha, Knew of the reservable character of the property when they bought it. They had knowledge of the provisions of the last will and testament of Mariano Riosa by virtue of which these

parcels were transferred to Jose Riosa. Pablo Rocha was one of the legatees in the will. Marcelina Casas was the one who entered into the contract of partition with Maria Corral, whereby these parcels were adjudicated to the latter, as a legitimate heir of Jose Riosa. Pablo Rocha was the very person who drafted the contracts of sale of these parcels of

land by Maria Corral to Marcelina Casas and by the latter to himself. These facts, together with the relationship existing between Maria Corral and Marcelina Casas and Pablo Rocha, the former a daughter-in-law and the latter a nephew of Maria Corral, amply support the conclusion that both of them knew that these parcels of land had been inherited by Maria Corral, as her legitime from her son Jose Riosa who had inherited them, by will, from his father Mariano Riosa, and were reservable property. Wherefore, the duty of Maria Corral of recording the reservable character of lots 10 and 11 has been transferred to Pablo Rocha and the reservees have an action against him to compel him to comply with this obligation.

_______________________________________________________

DIGESTED CASE#2: Riosa v. Rocha

+

Mariano Riosa ♥ Maria Corral

+ + +

Francisca ♥ Santiago Jose ♥ Marcelina Casas Severina

(during infancy)

Magin Consolacion 1 child (died before Mariano)

FACTS:

In the will of Mariano, he divided his property between Santiago and Jose, giving the latter the 11 parcels of land, the subject property in this controversy. Upon the death of Jose, he named his wife Marcelina in his will as his only heir.

The probate of the will was opposed on account of preterion of Maria Coronel. Being the mother and legitimate heir, Maria and Marcelina executed a contract/deed (dated May 16, 1917 and approved on Nov. 12, 1920) dividing between themselves Jose’s property, the 11 parcels of land being assigned to Maria Corral. Maria sold eight thereof to Marcelina

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on Oct. 26, 1920 evidenced by a public document recorded in the registry of deeds on Nov. 6, 1920. Marcelina sold the same to Pablo Rocha, nephew of Maria on Nov. 3, 1920. on Sept. 24, 1921, Rocha returned six of said lots to Maria stating therein that the same was erroneourly included in the sale made by Maria to Marcelina.

CFI: denied the probate

SC: annulled the will for probate. Maria and Marcelina then submitted the deed of

extrajudicial partition at the partition of and was approved by the court on Nov. 20, 1920.

This action was broght by Margin for whom the property should have been reserved against Maria, Marcelina and Pablo praying that:

(1) property be declared reservable property;

(2) that this reservation be noted in the registry of deeds

(3) that the sale be subject to the right of reservation.

HELD:

There is no doubt of the reservable character of the property.

In case of testate succession, as in this case, wherein extrajudicial partition was made and submitted to the court which the latter approved, for the purposes of reservation and the rights and obligation created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was

made, but from the time said partition was approved by the court.

In this case, the reservoir, according to law, is obliged to have the reservation noted in the registry of deeds within 90 days from the acceptance of inheritance, that is, from the adjudication of the property by the court to the heirs. Only after the expiration of the period may the reserves demand compliance with the obligation. But the land was sold even before the court’s approval on the partition, hence, appellant could not compel Maria even

after the expiration of the 90 days. But, the land was sold with the obligation that the law imposes upon Maria. The buyers could not have acquired a better title (obligation to register) that held by the seller.

The fact that the reservable character of the property was not recorded at the time of the sale cannot affect the right of reserve, because the transfers were made at the time when the obligation of the reservoir to note only such reservation and the reserves did not then have any right to compel her to fulfill such obligation. Moreover, Marcelina and Pablo knew of the reservable character of the property as Marcelina was the one who entered with the contract of partition and a daughter-in-law and Pablo drafted the deeds of sale and a nephew.

Where a reservable property is sold by the reservor, without having registered its reservable character, the obligation to register the same is transferred to the buyer, when the latter knew of the fact of the property’s reservable character.

______________________________________________

DIGESTED CASE #3: Rioso v. Rocha

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FACTS:

- Maria was married to Mariano. They had 3 children, Santiago, Jose, Severina. Severina died during infancy.

- Santiago (now deceased) was married to Francisca and had 2 children, Magin and Consolacion.

- Jose married Marcelina and had one child who died before Jose.

- Mariano left a will dividing his property between Santiago and Jose, giving the latter 11 parcels of land. Upon Jose’s death, he named his wife Marcelina as his only heir.

- When Jose’s will was going to be probated, Marcelina and Maria (the mother) entered into a contract where they divided the property left by Jose between themselves.

- Maria later sold parcels 1-6, 10 and 11 to Marcelina, who later sold them to Pablo Rocha. Pablo later returned parcels 1-6 to Maria saying that they were erroneously included in the sale made by Maria to Marcelina.

- Magin (the daughter of Santiago) is now claiming that she and her sister Consolacion had a share in the 11 parcels passed on to Marcelina by Jose.

ISSUE:

WON the 11 parcels were reservable properties.

HELD:

- YES.

The 11 parcels of land were acquired by Jose by lucrative title from his father Mariano and that after the death of Jose, they passed on to Maria by operation of law.

- Magin and Consolacion were the nearest relatives within the 3rd degree of the line from which the property came.

- Maria was ordered to acknowledge the right of Magin and Consolacion to the reservation of the parcels of land, which was to be recorded in the RD.

- As to Marcelina and Pablo, they could not have acquired a better title than that held by Maria Corral and if the latter's title was limited by the reservation and the obligation to

note it in the registry of deeds.

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- Pablo was also ordered to register parcels 10 and 11 as reservable property in the RD since he knew that the property was reservable. He was a legatee in the will.

- For purposes of reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs

from the time the extrajudicial partition was made, but from the time said partition was approved by the court.

- The reservoir is bound to register the reservation within 90 days from the date of adjudication of the property to the heirs by the court.

- Where a reservable property is sold by the reservoir, without having registered its reservable character, the obligation to register the same is transferred to the purchaser, if the latter knew of the reservable character of the property.

____________________________________________________________

SUPPLEMENTAL NOTES:

Riosa v. Rocha

48 Phil. 737

FACTS:

Rufina Dizon died, and three parcels of land were inherited by her childless son. Later, the son died and the lands were inherited intestate by the father.

ISSUES:

1) What should the father now do insofar as the reservable property is concerned?

HELD:

He must annotate the reservation in the Registry of Property within 90 days from the

time he accepts the inheritance (if there be NO court litigation) or within 90 days from the time the court awards him the property (if there be court proceedings). (See also Arts. 199 and 191, Mortgage Law).

2) Suppose the annotation is not made by the father (reservor) within the period of 90 days, what is the right of the existing reservees?

HELD:

Their right is to judicially demand that the reservor comply with his obligation or to demand

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that a mortgage be constituted for their security.

3) Suppose within the period of 90 days, the reservoir alienates the property in favor of a purchaser who knew of the existence of the reserva, can the purchaser

be compelled to make the annotation?

HELD:

If the 90-day period has not yet lapsed, the purchaser cannot be compelled yet, because he

still has the opportunity to make the annotation himself. If the 90-day period has lapsed, and he has not yet caused the annotation to be made, he can be judicially compelled to make the annotation. Prior to the lapse of the 90-day period, the reservees cannot be blamed if they fail to cause the annotation of the reserva — for the simple reason that they do not yet

have the right to compel such annotation.

4) If within the 90-day period, the reservor dies, may the reservees get the property from the purchaser who had bought the property — knowing fully well that a reserva existed?

HELD:

Yes, for the purchaser here acquired no better right than what the reservor had — full ownership that was subject to a resolutory condition.

5) Suppose the reservor has not yet died, and the 90- day period has already lapsed, may the reserve compel the purchaser to annotate the reservation and at the same time to constitute a mortgage or security?

HELD:

Annotation can be compelled, but not the constitution of the mortgage or the giving of security. This is because once the annotation is made, the reservor is amply protected, and therefore, there is no more need for the security. The property itself, in this case, can answer for the effi cacy of the reservatroncal.

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Riosa v. Rocha

The reservista refused to register the property and annotate it accordingly. The reservatorios want the reservation be noted in the RD.

Held:

Register it. The reservista is bound to register the reservation within 90 days from the date of the adjudication of the property to the heirs by the court. After this period, the reservatorios have the right to enforce compliance with the obligation.

Where a reservable property is sold by the reservista, without having registered its reservable character, the obligation to registere the same is transferred to the purchaser, when, in making the purchase, the latter knew the facts which give the property the reservable character.

Vested Right to the Legitime

It is true that the right to enter into the possession of any inheritance commences only from the moment of the death of the predecessor-in-interest. But it is undeniable that a necessary

or forced heir (compulsory heir), according to the system

of legitimes, has by provision of law, from the time of his birth, a vested right to eventually acquire the inheritance from his ascendants, the right to be actually vested, from the moment of death. Such a vested right is inherent with his fi liation to which belong the obligations and rights of the author of his being. (Rocha v. Tuason and Rocha de Despujol, 39 Phil. 973).

In general, the reservor must make an INVENTORY (including the actual condition of the properties and their value) of the reservable property, and must furnish a BOND, SECURITY or MORTGAGE to guarantee the safe delivery later on to the reservee of the properties

concerned, or their values, in the proper cases. (Unless the property involved is real property, the inventory can be made in any form, judicially or extrajudicially, private

or public writing. If real property is involved, its eventual registration necessarily presupposes the execution of a public instrument). (See 6 Sanchez Roman 1896). It is

understood that the reservor is liable for all deteriorations imputable to his neglect, fault, or malice. (6 Sanchez Roman 1035). The bond, security, or mortgage is, however,

not needed when the property has been registered as SUBJECT to the reservation or reserva troncal. (Riosa v. Rocha, 48 Phil. 737; Dizon v. Galang, 48 Phil. 601).

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[NOTE: It is unfortunate that the new Civil Code does not have any provision regarding the rights and obligations of the reservor and the reservees. While it is true that even under the old Civil Code, no such provision also was found, still the Supreme Court has held that the

rights and obligations referred to in reserva viudal could apply to a case involving reserva troncal. (Riosa v. Rocha, 48 Phil. 737; Dizon v. Galang, 48 Phil. 601; TS, Dec. 30,

1897). Despite the abolition of the reserva viudal in the new Civil Code, it is believed that the jurisprudence on the subject can very well be made use of in determining the rights and obligations of the parties in reserva troncal.].

Has the reservor the power to alienate or encumber the reservable REAL PROPERTY?

ANS.:

Yes, but subject to the reserva, that is, the reservee can get the real property from the transferee as soon as ownership is transferred to such reservee, without prejudice of course to the Land Registration Act and the Mortgage Law. Said alienation or encumbrance can even be made without the consent of, or notice to, the reservees.

(See 7 Manresa 287; Riosa v. Rocha, 48 Phil. 737). Thus, if reservable land is registered under the Torrens System as free (that is, no encumbrances, liens, or reservas), an

innocent purchaser for value will be preferred over a reservee. (Tuason v. Reyes, 48 Phil. 844). However, the estate of the reservor will of course have to indemnify the

reservee.

[NOTE: Even if the property is registered under the Torrens System as FREE, still, if a purchaser knows of the existence of the reserva, it is clear that he buys the property subject to the reserva, for after all, actual knowledge is equivalent to registration. Of course, it would be permissible for the reservees to ratify the sale, that is, they can validly renounce their right to the reserva. (See 6 Sanchez Roman 1895).].

BAR QUESTION

May the property subject to reserva be alienated?

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ANS.:

Inasmuch as the reservor is not a mere usufructuary, the answer is YES, without prejudice to reimbursement by his estate concerning personal properties, and without prejudice to the reservation insofar as real properties are concerned. (See Lunsod v. Ortega, 46 Phil.

664; see also the following succeeding cases).

_________________________________________________

Maghirang vs. Balcita, 48 Phil 551

SUPPLEMENTAL NOTES:

Extinction of Reserva. —

The following are the different causes for the extinguishment of the reserva:

(1) Death of the ascendant-reservista.81

(2) Death of all relatives of the descendant-propositus within the third degree who belong to the line from which the property came. In such case, the active subject of the reserva disappears, as a consequence of which the resolutory condition which limits the title

of the reservista also disappears.82

(3) Loss of the reservable property for causes not due to the fault or negligence of the reservista.83

(4) Waiver or renunciation by the reservatarios.84 The renunciation may be before or after the death of the reservista. If the renunciation is made before the death of the reservista, such renunciation cannot affect other third degree relatives who may be born subsequently and who survive the reservista; if it is made after the death of the reservista, the reservation is extinguished but only insofar as the share of the renouncer is concerned. In either case, the renunciation may be either express or implied.85

(5) Prescription of the right of the reservatarios, when the ascendant-reservista holds the property adversely against them in the concept of an absolute owner.86 The possibility of the reservatarios losing their right in the reservable property by extraordinary prescription has been explicitly recognized by the Supreme Court in Maghirang vs. Balcita and in Carillo vs. De Paz.

In the first case (Maghirang vs. Balcita), the subject property was inherited by a minor, Gertrudis Balcita, in 1902 directly from her maternal grandfather, Bonifacio Gutierrez, in representation of her predeceased mother. In 1906, Atilano Bautista, father of Gertrudis, representing himself to be the absolute owner of the land, sold it to Esteban Reyes with right or repurchase within ten years. Upon buying the property, Reyes immediately took possession thereof. In 1912, Gertrudis died survived by her father, Atilano Bautista, and

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a maternal aunt, the plaintiff Sergia Gutierrez. In 1918, the latter brought an action for registration of the land in her capacity as reservatario or reservee under Art. 911 (now 891) of the Civil Code. The lower court ruled that Reyes had already acquired absolute ownership over the property by acquisitive prescription because he had been in continuous and adverse possession thereof for more than ten years. The Supreme Court, however, held:

“We are of the opinion that the conclusion thus reached is erroneous. We may accept the legal proposition that occupancy by Esteban Reyes, pursuant to the contract of sale with pacto de retro by which he acquired the property, and prior to the expiration

of the period for redemption, may be considered an adverse possession as against everybody having a prescriptive interest, notwithstanding the existence of the stipulation for repurchase.

As was said by this court in Santos vs. Heirs of Crisostomo and Tiongson (41 Phil. 342, 352), the insertion of a stipulation for repurchase by the vendor in a contract of sale does not necessarily create a right inconsistent with the right of ownership in the purchaser. Such a stipulation is in the nature of an option, and the possible exercise of it rests upon contingency. It creates no subsisting right whatever in the property, and so far from being

inconsistent with the idea of full ownership in the purchase, it really rests upon the assumption of ownership in him.

“But it must be borne in mind that the true owner of this property was Gertrudis Balcita, a minor, and the period of limi tation did not begin to run against her or any person claiming

in her right until the date of her death, which was December 9, 1912. It must furthermore be remembered that the plaintiff does not claim in the character of an ordinary successor to the

rights of Gertrudis Balcita; her claim is based upon a positive provision of law, which could not operate in any wise until the death of Gertrudis Balcita, when the reservable character first attached to the property in question. From this it is obvious that the right of the plaintiff — which even yet is of a purely contingent nature — could not be affected by anything that had occurred prior to the death of Gertrudis Balcita; and as this action was begun in May, 1918 the ten-year period necessary to confer a complete prescriptive title had not then elapsed. “What has been said makes it unnecessary to express any opinion upon the more recondite question whether Sergia Gutierrez really has a prescriptible interest in the parcel B, but we may observe that the position of the reservee under the Spanish law is very much like that of the ordinary remainderman at common law, who is entitled to take after the termination of a particular life estate; and it is generally accepted doctrine in common-law jurisdictions that if the life tenant loses his life estate by adverse possession the interest of the remainderman is not thereby destroyed. (17 R.C.L. 982; 21 C.J., 972, 975, 1013.)

The reason for the rule is said to be that, during the existence of the life estate, the remainderman has no right to possession and consequently cannot bring an action to recover it. (21 C.J., 974.) As was said by the Supreme Court of Ohio in Webster vs. Pittsburg, etc., Railroad Co. (15 L.RA. (N.S.), 1154), “No possession can be deemed adverse to a party who has not at the time the right of entry and possession.”

SUMMARY: Maghirang vs. Balcita

Facts:

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Bonifacio had one daughter by 2nd marriage, Zoila, who inherited property from him. She had a daughter, Gertrudes. Ziola died and property went to Gertrudes but the latter also died, so it went to Atilano, Zoila’s husband and father of Gertrudes. Sergia, a daughter of Bonifacio by the 3rd marriage, now claims property as reservatario. Has Sergia’s right prescribed?

Held:

The period of limitation did not begin to run against Gertrudes or any person claiming in her right until after the date of her death. Therefore, the period only started to run upon

Gertudes’ death and because the action was filed almost 6 years after her death, it has not yet prescribed. This is analogous to doctrine in common law that if the life tenant loses his life estate by adverse possession, the interest of the remainderman is not destroyed.

______________________________________________________

Delos Reyes vs. Paterno, 34 Phil 420

DIGESTED CASE: De los Reyes v. Paterno (1916)

FACTS:

This action was commenced on February 7, 1914, for the purpose of declaring the plaintiff as owner of 1/2 of 2 parcels of land located in Sta. Cruz, Manila.

The defendant, in his special defense, alleged that the said Tomas G. del Rosario, at the time of his death, was the sole and only owner of said lots or parcels of land.

The court a quo rendered a judgment ordering the defendant to deliver to

the plaintiff one-half of one of said parcels of land.

From that conclusion the defendant appealed, and made this assignment of error: that the lower court "erred in not holding that the decree of the Court of Land Registration is res judicata against the plaintiff; and that the two certificates of title of the properties that are the subject matter of the complaint, issued in behalf of Tomas G. del Rosario by virtue of said decree, are conclusive and decisive proof against the plaintiff."

Held:

If it is true that during the lifetime of Tomas G. del Rosario, he obtained a Torrens title for the lots or parcels of land in question, and if that judgment or decree of the Court of Land Registration became final, or if more than one year had elapsed after the decree, then his title is unimpeachable and cannot be annulled or set aside, even for fraud.

As was noted above, the present action was commenced on the 7th of February, 1914. During the trial, the defendant presented as proof Exhibit C which shows the following facts:

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First. That the said Tomas G. del Rosario presented a petition in the Court of Land Registration on the 24th of April, 1909, for the registration under the Torrens system of the two parcels of land in question.

Second. That on the 21st of September, 1909, the Court of Land Registration rendered the following decree, ordering said parcels of land to be registered in the name of Tomas G. del Rosario:

"The applicant has presented documentary evidence, from which a certified copy issued by the register of deeds of Manila on July 17, 1907, of the entry made in the old property registry, it was deduced that these properties have been the subject of successive and legal conveyances since the year 1879, until they were acquired by the applicant in August and September, 1891, by purchase, during his conjugal partnership, now dissolved, with his wife, Juana Reyes y Reyes, and that the ownership of both properties was recorded in the said property registry in the name of Tomas G. del Rosario.

"Upon the death of Juana Reyes y Reyes, who died intestate, Concepcion Crispina Dorotea Severina del Rosario y Reyes, a daughter of the marriage of the deceased with the applicant, Tomas G. del Rosario, was declared to be the sole heir of decedent on February 20, 1892.

"On June 3, 1900, the said Concepcion del Rosario y Reyes also died, at the age of 9 years, and was succeeded in all her rights and actions, and in respect to one-half of the property, by the applicant Tomas G. del Rosario, who was already the owner of the other half of the property."

From the 21st of September, 1909, until the 7th of February, 1914, much more than one year elapsed. The title, therefore of Tomas G. del Rosario was absolute and complete. The failure of the plaintiff, if he ever had any interest or title in said land, to appear and oppose the registration of the same in the name of Tomas G. del Rosario or to question the registration in his name during a period of one year after the certificate of title had been

issued, operates to exclude him forever from questioning the title granted under the Torrens system.

The plaintiff having lost his right to claim any interest in the lots or parcels of land in question, by virtue of his (a) failure to present any opposition to the registration of the same under the Torrens system in favor of Tomas G. del Rosario, or (b) to question the validity of such registration within a period of one year thereafter he has forever lost his right therein, if he ever had any.

______________________________

SUPPLEMENTAL NOTES:

De los Reyes vs. Paterno

The right of a reservatario is a reservable right and may be noted in the certificate of registration as a valid lien against the property. However, this right may be lost by his failure to present any opposition to a petition for registration of a parcel of land under the Torrens system and his subsequent failure to oppose such registration within the period prescribed by law.

Registration by the reservista of the property as free property under the Land Registration Act (Act No. 496)89

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De los Reyes vs. Paterno

34 Phil. 420

The records show that the reservista registered the property in question as free property under the Land Registration Act without any opposition on the part of the reservatarios. After

this death, six years later, the plaintiff, commenced this action for the recovery of the property on the ground that he is entitled to the ownership and possession thereof in accordance with the provision of Art. 811 (now Art. 891) of the Civil Code. On appeal, the Supreme Court held that his failure to present any opposition to the registration within a period of one year after the decree of registration had been entered has the effect of extinguishing his right to the property. Subsequently, his counsel presented a motion for rehearing wherein he invoked the doctrine in the case of Edroso vs. Sablan, 25 Phil. 295. The

Supreme Court, however, held:

“It is true that in the case of Edroso vs. Sablan, we held that the owners of ‘el derecho reservable’ were entitled to have their right noted in the certifi cate of registration as a valid lien against the property. In that case (Edroso vs. Sablan), the persons holding the reservable rights presented their opposition to the registration of the land in question during the pendency of the action in the Court of Land Registration. In the present case, the land in question was registered in the month of September, 1909. No objection was presented to the registration of the property. No question is now raised that the proceedings for the registration of the land in question were not regular and in accordance with the provisions of the Land Registration Act. Moreover, the plaintiff presented no claim whatever for a period

of six years. In the case of Edroso vs. Sablan, the parties interested went to the Court of Land Registration during the pendency of the action there and fully protected their rights. In the present case, the plaintiff did not, thereby losing his right given him under the law to the land in question. Whether he has any other remedy for the purpose of recovering damages to cover his loss is a question which we do not now discuss or decide. The appellee

apparently had the idea that the decision in the present case destroys ‘el derecho reservable.’ That was not the purpose of the decision. The effect of the decision simply is that unless such right is protected during the pendency of the action for the registration of the land within a period of one year, thereafter, such right is lost forever. We are of the opinion that there is no conflict between the decision in the present case and in the case

of Edroso vs. Sablan.’’

De Los Reyes v. Paterno

34 Phil. 420

FACTS:

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In Sep. 1909, reservable property was registered as free under the Torrens System. No objection was presented to the registration of the land, although the registration did not include the reserva. Six years later, the reservees (reservatarios) claimed their rights to the

reservable properties. Are they justifi ed?

HELD:

No, the reservees are not justifi ed. “The provisions of Sec. 38 of Act No. 496 — the Land Registration Act — seem to prohibit absolutely the raising of any question concerning the validity of a title of land registered under the Torrens system, after the expiration of one year. We are of the opinion that the prohibitions contained in said section apply to every claim, of whatever nature, which a person may have had against registered lands...

The plaintiff in this case did not protect his rights during the pendency of the action. Unless such right is protected during pendency of the action for the registration of land under the Torrens System or within a period of one year thereafter, such right is lost forever.”

Extinguishment

How may the reserva be extinguished?

1. The death of the reservor or reservista;

2. The death or incapacity of all the would-be reservatorios or reservees during the

lifetime of the reservor or reservista ;

3. Renunciation or waiver by all the reservatorios of their right to the reserva

made subsequent to the death of the reservor, provided that no other reservatorio is born subsequently;

4. Total fortuitous loss or destruction of the reserved property without any fault or

negligence on the part of the reservor or reservista ;

5. Confusion or merger of rights, as when the reservatorio acquire the reservista’s right by

a contract inter vivos;

6. Prescription of action to recover property

from the estate of the reservor or adverse possession. Prescription is ten years.

7. Registration of the reserved property under the Torrens System as free from the

reservation and its subsequent alienation to a third party who got it in good faith (De los

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Reyes vs. Paterno, 34 Phil. 470);

8. Estoppel and laches (Arroyo vs. Gerona, 58 Phil. 266).

De Los Reyes v. Paterno

- The subject properties were the conjugal property of Tomas G. Del Rosario and his wife, Juana Reyes. Juana died and her daughter Concepcion was declared to be her sole heir. However, Concepcion died at the age of 9 and all her rights to the half of the property passed to her father, Tomas, who was then already the owner of the other half.

Tomas registered the properties and after a year his title thereto became absolute and complete.

- After 6 years, plaintiff in this case seeks to recover one half of the subject properties, on the basis of reserve troncal.

ISSUE:

Whether or not the plaintiff may still recover the property after the lapse of one year from the finality of the registration proceedings on the ground of reserve troncal

HELD:

- No.

- The reservable right may be lost to the holder when he fails or neglects to oppose the registration of the land in which such right exists under the Torrens System.

- Unless a reservable right is protected during the pendency of the action for the registration of land, or within the allowable period to contest such as prescribed by law, such right is lost forever.

_______________________

De los Reyes vs. Paterno

Facts:

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Reservatario did not object to the registration of the property by the reservista.

ISSUE:

Is the reservable character of the property lost in the hands of an innocent purchaser for value?

Held:

Yes, the provisions of Act 496 seem to prohibit absolutely the raising of any question concerning the validity of a title of land registered under the Torrens system, after the expiration of one year. Because reservatario did no protect his rights, he lost

his right to the property in question.

____________________________________________________________

Lacerna vs. Vda. de Corcino, 111 Phil. 872

DIGESTED CASE: RIcardo LACERNA, et al., plaintiffs-appellants, vs. Agatona Paurillo VDA. DE CORCINO, defendant-appellee. Jacoba MARBEBE, intervenor-appellee. G.R. No. L-14603, April 29, 1961

FACTS:

Valentine Marbebe begot a daughter, Jacoba Marbebe, before his marriage with Bonifacia Lacerna. Valentine and Bonificia had an only son, Juan. Valentine and Bonifacia died leaving three parcels of land to their only son Juan. Juan, then, executed a power of attorney authorizing the sister of his mother or his aunt, Agatona Vda. de Corcino take care of the disputed land. Eventually, Juan died intestate and without any issue. The Court of First Instance declared that the land is property of Jacoba being the half sister of Juan. Agatona Vda. de Corcino and the nephews and nieces of Bonifacia questioned the decision of the court. According to them, the case should be based upon Article 891 of the Civil Code of the Philippines which establishes what is known as "reserva troncal." According to them, under this principle, the properties in dispute should pass to the heirs of the deceased within the third degree, who belong to the line from which said properties came. Thus, since Juan Marbebe inherited the land from his mother, they should go to his nearest relative within the third degree on the maternal line or to his aunt and cousins and not to Jacoba Marbebe for she belongs to the paternal line. This, however, was protested by Jacoba Marbebe. She contends that pursuant to Articles 1003 to 1009 of the Civil Code of the Philippines, brothers and sisters exclude all other collateral relatives in the order of intestate succession, and that, as Juan Marbebe's half-sister, she has, accordingly, a better right than plaintiffs herein to inherit his properties.

ISSUE: Who has the better right to succeed Juan?

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RULING: The provision on reserve troncal cannot be applied in this case. In reserve troncal, the ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Emphasis supplied.) This article applies only to properties inherited, under the conditions therein set forth, by an ascendant from a descendant, and this is not the scenario in the given case, for the lands in dispute were inherited by a descendant, Juan Marbebe, from an ascendant, his mother, Bonifacia Lacerna. Said legal provision is, therefore, not applicable in this case. Furthermore, the Trial Judge, correctly awarded the land to Jacoba Marbebe. The said decision is in accordance with the order prescribed for intestate succession, particularly Articles 1003 to 1009 of the Civil Code of the Philippines, pursuant to which a sister, even if only a half-sister, in the absence of other sisters or brothers, or of children of brothers or sisters, excludes all other collateral relatives, regardless of whether or not the latter belong to the line from which the property of the deceased came. Based on the foregoing, Jacoba Marbebe has the better right to succeed Juan.

_________________________________

SUPPLEMENTAL NOTES:

Lacerna v. Vda. de Corcino

L-14603, Apr. 29, 1961

FACTS:

A son inherited a parcel of land from his mother. Is there already a reserva troncal?

HELD:

Not yet, for the requisites under Art. 891 are not present.

[NOTE: If in the case presented, the father will later inherit, by operation of law, the land from the son, a reserva troncal will arise, with the father as reservor.].

Inheritance by Collaterals

(a) The collaterals referred to in this Article are intestate, but not compulsory heirs.

(b) Among said collaterals, the nearer excludes the farther.

(c) A sister, even if only a half-sister, in the absence of other sisters or brothers, or of children of brothers or sisters, EXCLUDES all other collateral relatives, regardless of

whether or not the latter belong to the line from which the property of the deceased came. (Lacerna, et al. v. Paurillo Vda. de Corcino, L-14603, Apr. 29, 1961). Upon the other hand, collaterals cannot inherit in the presence of descendants. Hence, if there be a recognized natural child, the sister of the deceased is excluded. (See Pasion v. Pasion, L-15757, May 31, 1961).

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[NOTE: There is no mention of the natural child nor of the spurious child under Art. 165 of the Family Code.].

Lacerna vs. Corcino

Facts:

Mother, who has 2 brothers, died, leaving property to son. Son died, leaving his 2 uncles and a half sister. TC gave property to half-sister as part of her inheritance from son. Uncles of son appealed, saying there is reserva.

Held:

There is no reserve because it is required that an ascendant inherits from the praepositus. In this case, the lands were inherited by the descendant from the ascendant. Also, the half-sister is not an ascendant, and is not therefore a reservor.

· Property may be personal or real. However, generally, there is no substitution, because if the praepositus exchanged the property the property he receives in exchange no longer

came from the ascendant, brother or sister. The only exceptions are the following: when the reservor loses or alienates the property, or when the property is fungible, like

money.

· The reservor is an absolute owner, so he can sell the property and the title of the buyer becomes absolute. However, if there are relatives within the 3rd degree who are

entitled to receive it, the buyer must return the property to the reservees.

· The ascendants who are required to reserve the property are only those who acquire the property from a descendant by operation of law and not through the will of the praepositus.

· Even if the property acquired by the reservor from the praepositus came from another ascendant of the same line, he is still to reserve it because the law does not require that

the property come from a different line and there is reserve when the property comes from a brother or sister which certainly does not come from a different line.

· If for example, X, the father donates property to his son, who dies intestate and X became sole heir, is X bound to reserve?

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No, because this is reversion legal and reserve troncal requires that the property goes to another ascendant, not the origin of the property himself.

· Reservor must acquire property by operation of law, either by intestacy or legitime. If he acquires property by will, it is not reservable. If he acquires whole estate, including

reservable property, then two theories may apply. Reserva maxima says that all properties received by the praepositus from another ascendant which may be comprised within the

one half of inheritance which belongs as legitime to reservor is reservable. On the other hand, reserva minima states that all the properties existing should be considered as acquired one half by operation of law and one half by will of the descendant. Thus there should be reserved only one half of the property because only one half is acquired by operation of

law. The latter is more reasonable

_________________________________________________

SUPPLEMENTAL NOTES:

Rodriguez v. Rodriguez

When Domingo Rodriguez died intestate, he was survived by his widow, Concepcion Felix, his children grandchildren. The widow, children and grandchildren of the deceased entered into an extra-judicial settlement of his estate, consisting of one-half of the properties allegedly belonging to the conjugal partnership. The widow later on questioned the validity of this extrajudicial partition, saying that she entered such contract under duress, violence and intimidation.

The SC agreed with the trial Court that the evidence was not convincing that the contracts of transfer from the widow to her daughter, and from the latter to her mother and stepfather were executed through violence or intimidation (this was done to allegedly convert paraphernal property into conjugal).

What is more decisive is that duress being merely a vice or defect of consent, an action based upon it must be brought within four years after it has ceased; and the present action was instituted only after 28 years after the intimidation is claimed to have occurred, and no less than 9 years after the supposed culprit died. On top of it, appellant entered into a series of subsequent transactions with appellees that confirmed the contracts that she now tries to set aside. Therefore, this cause of action is clearly barred.

May incorporeal property be reserved?

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Yes. In Rodriguez vs. Rodriguez (101 Phil. 1098 [1957]), a sugar allotment (a form of incorporeal property) was held to be reservable.

The Property Reserved

Any kind of property is reservable. A sugar quota allotment, as incorporeal

property, was held to be reservable in Rodriguez v. Rodriguez.

Effect of Substitution

o The very same property must go through the process of transmissions, in order for the

reserva to arise. Thus, the same property must come from the Mediate Source, to the

Prepositus by gratuitous title, and to the reservista by operation of law.

oIf the prepositus substitutes the property by selling, bartering or exchanging it, the substitute cannot be reserved.

o Note that while the property is with the Prepositus, there is yet no reserva, which

commences when the property id received by the reservista.

oConsequently, the Prepositus has, over the property, plenary powers of ownership, and he

may exercise these powers to thwart the potential reserva. The Prepositus is the arbiter

of the reserva.

QUESTION – would there be a reserva if the Prepositus sold the property under

pacto de retro and then redeemed it?

Reserved Property Does Not Form Part of the Reservista’s Estate Upon his Death

o The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista’s successor mortis causa nor is the reservable property part of the reservista’s estate; the reservatario receives the property as a conditional heir of the Prepositus, said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista’s lifetime.

___________________________________________--

Maghirang vs. Balcita, 46 Phil. 551 (refer to the case above)

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__________________________________________________

Jardin vs. Villamayor, 72 Phil. 392 ( can’t find the full text nor a digest--- just refer to the digested case of Gonzales vs CFI)

_______________________________________________

Padura vs. Baldovino, 104 Phil. 1065 ( refer above case)

________________________________

Aglibot vs. Manalac, 4 SCRA 1030

DIGESTED CASE: G.R. No. L-14530 April 25, 1962

LEONA AGLIBOT, ET AL., plaintiffs-appellees, vs.ANDREA ACAY MAÑALAC, ET AL., defendants-appellants.

Facts of the case:

the land in question belonged to the conjugal partnership of the spouses Anacleto Mañalac and Maria Aglibot,

it is registered in the name of Anacleto Mañalac, married to Maria Aglibot;

that said spouses had an only child named Juliana Mañalac;

that Maria Aglibot died on October 2, 1906;

that on April 25, 1910, Anacleto Mañalac married appellant Andrea Acay with whom he had six children

that Juliana Mañalac died intestate on October 22, 1920, leaving no other relatives except her father, Anacleto Mañalac, and her half brothers and sisters already mentioned;

that upon the death of Anacleto on June 2, 1942, his widow, Andrea Acay, and her six children took possession of the parcel of land in controversy and since then have refused to surrender the ownership and possession thereof to the appellees;

that the land produces thirty cavanes of palay yearly.

in 1951, appellees Leona and Evarista Aglibot filed a verified petition in the Court of First Instance of Zambales for the summary partition or distribution of the properties left by the deceased Juliana Mañalac among her rightful heirs

The main question to be resolved now is: Who is entitled to the land which Anacleto Mañalac inherited from his daughter, Juliana, as between appellees(sisters of Maria Aglibot, first wife of Anacleto Mañalac), on the one hand, and appellants (Anacleto's second wife and their children), on the other?.

It is clear from the facts of the case that the land in question is reservable property in accordance with the provisions of Article 811 of the Spanish Civil Code (Art. 891 of the New Civil Code). Both parties now admit that the entire parcel covered by Original Certificate of Title No. 10 belonged to the conjugal partnership of the spouses Anacleto Mañalac and Maria Aglibot; that upon the death of the latter on October 2, 1906, their only daughter, Juliana Mañalac, inherited one-half of the property, the other pertaining to her father as his share in the conjugal partnership; that upon the death of Juliana Mañalac on October 2, 1920 without leaving any descendant, her father inherited her one-half portion of said property. In accordance with law, therefore, Anacleto Mañalac was obliged to reserve the portion he had thus inherited from his

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daughter, for the benefit of appellees, Leona and Evarista Aglibot, aunts of Juliana on the maternal side and who are, therefore, her relative within the third degree belonging to the line from which said property came.

Appellants' contention that the major portion of the purchase price of the land in question was paid to the original owner, Esteban Garcia, after the death of Maria Aglibot is rendered clearly untenable not only by the lack of sufficient evidence to this effect but also by the very significant circumstance that the property was titled in the name of Anacleto Mañalac "married to Maria Aglibot" — circumstance that strongly indicates that said spouses had acquired full ownership thereof during the lifetime of Maria Aglibot.

_______________________________________

SUPPLEMENTAL NOTES:

[Problem — If in the problem given, the property is claimed by a brother of F and by a brother of M, who should get the property?

ANS.:

The brother of M gets the property as a result of reserva troncal. (See Leona Aglibot, et al. v. Andres Acay Mañalac, et al., L-14530, Apr. 25, 1962, where the Court applied the provision on reserva troncal).].

________________________________________

Gonzales vs. Legarda, 104 SCRA 479 refer to the case Gonzales vs CFI

_____________________________________

Cano vs. Director of Lands, 105 Phil. 1

DIGESTED CASE: Maria Cano vs. Dir of Lands, Guerreno et.al

G.R L-107 January 16, 1959

Reyes, JBL. J

Facts:

The CFI of Sorsogon ordered that the two parcels of land be registered in the

name of Maria Cano subject to right of reservation in favor of Eustaguia Guerrero.

On Sep. 8 1955, reservista cano died and the Lower Court granted the petition for

the issuance of a new certificate for the reason that the death of the reservista

vested the ownership of the property in the petitioner as the sole reserve troncal.

Opposites, heir of Maria Cano appealed the order insisting that reservation

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proceedings. This appeal.

Issue:

Whether or not an intestacy proceeding is necessary for the entitlement of

reservation to the receivable property?

Ruling:

The court ruled no.

The Reservatorio is not the resevista’s successor mortis cause nor ids the

reservable property part of the reservista’s estate; the reservatorio receives the

property as a conditional heir of the descendants ( prepositus), said property merely

reverting to the line of origin form which it had temporarily and accidentally strayed

during the reservista’s lifetime.

It is a consequence of these principles that up[on the death of reesrvista, the

reservatorio nearest to the prepositus becomes automatically and by operation of

law, the owner of the reservable property. As already state of the reservista and

does not even answer for the debts of the latter.

DIGESTED CASE#2: Cano v. Director of Lands (1959)

The Certificate of Title of the land in question was registered in the name

of Maria Cano, subject to reserva troncal in favor of Eustaquia Guerrero.

On September 8, 1955, the reservista Cano, died. Thus, in October, 1955,

the reservee (reservatorio) Eustaquia applied for the cancellation of the

original title and a new one issued in her favor.

The motion was opposed by the sons of Cano: Jose and Teotimo

Fernandez. They contended that the application and operation of the

reserva troncal should be ventilated in an ordinary proceeding, not in the

Registration Court.

However, the lower court granted the petition on the basis of the recorded

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reserve. It held that the issuance of a new certificate is proper, for the

reason that the death of the reservista vested the ownership of the

property in the petitioner as the sole reservatario troncal.

The oppositors appealed and argued that the reversion in favor of the

reservatario requires the declaration of the existence of the following facts:

(1) The property was received by a ascendant by gratuitous titled from

an ascendant or from a brother or sister;

(2) Said descendant dies without issue;

(3) The property ascendant by operation of law; and

(4) The existence of relatives within the third degree belonging to the

line from which said property came.

Held:

The requisites enumerated by appellants have already been declared to

exist by the decree of registration wherein the rights of the appellee as

reservatario troncal were expressly recognized.

The property was inherited by Cano from her deceased daughter, Lourdes

Guerrero, who inherited the same from her father, Evaristo Guerrero.

Hence, falls squarely within the provisions of Article 891 of the Civil Code.

The only requisites for the passing of title from the reservista to the

appellee are:

(1) the death of the reservista; and

(2) the fact that the reservatario has survived the reservista.

Both facts are admitted, and their existence in nowhere questioned.

The contention that an intestacy proceeding is still necessary rests upon

the assumption that the reservatario will succeed in, or inherit, the

reservable property from the reservista. This is not true.

The reservatario is not the reservista's successor mortis causa nor is the

reservable property part of the reservista's estate; the reservatario

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receives the property as a conditional heir of the descendant (prepositus),

said property merely reverting to the line of origin from which it had

temporarily and accidentally strayed during the reservatarios that survive

the reservista, the latter must be deemed to have enjoyed no more than a

life interest in the reservable property.

It is a consequence of these principles that 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. 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.

Of course, where the registration decree merely specifies the reservable

character of the property, without determining the identity of the

reservatario, or where several reservatarios dispute the property among

themselves, further proceedings would be unavoidable. But this is not the

case.

The rights of the reservataria Eustaquia Guerrero have been expressly

recognized, and it is nowhere claimed that there are other reservatarios of

equal or nearer degree.

SUPPLEMENTAL NOTES:

Is the reserved property a part of the reservista’s estate upon his death?

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No. (Cano vs. Director, 105 Phil. 1 [1959]) Since the reserved property is not computed as part of the reservista’s estate, it is not taken into account in determining the legitimes of the reservista’s compulsory heirs.

Lloyd is the legitimate love child of Adel and Kath. Adel dies. Property valued at

Php600000.00 is thus inherited by Lloyd from his father. Subsequently, Kath dies from the heartbreak of losing her one true love. Thus, Lloyd is the lone survivor of his immediate family. Moved by extreme pity for his plight, Lloyd’s friend Rico donates to Lloyd property valued at Php400000.00. Upon Lloyd’s death, since he died without issue, the nearest ascendant to Lloyd, Mrs. Reyes, Lloyd’s paternal grandmother, is his sole heir by operation of law with a share of 1/2 of the estate. Lloyd, however, has also made a will designating Mrs. Reyes to 1/2 of his entire estate. Given the foregoing facts and assuming that the two properties mentioned are the only properties comprising the estate of Lloyd, how much of the estate of Lloyd is reservable property?

A problem will arise, as in this case, if two circumstances concur: (1) the prepositus makes a will instituting the ascendant-reservista to the whole or a part of the free portion; and (2) there is left in the prepositus’ estate, upon his death, in addition to the reserved property, property not reservable. Upon concurrence of such, there is controversy as to how much of the estate of the prepositus should be deemed reservable.

Two theories have been advanced to determine such.

First is the reserva maxima which holds that as much of the potentially reservable property as possible must be deemed included in the part that passes by operation of law – a true “maximization” of the scope of the reserva.

Second is the reserva minima wherein every single property in the prepositus’ estate must be deemed to pass, partly by will and partly by operation of law, in the same proportion that the part given by will bears to the part not so given. Either view is defensible although the minima finds wider acceptance in our jurisdiction as it is deemed to be more equitable.

The best way to understand both concepts is to tackle the problem at hand. Let us label the

property received from Adel as Property I and the property received from Rico as Property II.

The following points are of utmost importance:

1. Property I is valued at Php600000.00 while Property II is valued at Php400000.00.

2. Only Property I may potentially be considered as reservable property because it is the only portion of the estate of Lloyd that came from an ascendant who can be considered an origin or mediate source.

3. 1/2 was passed on to Mrs. Reyes by legitime and hence is the only portion that can be

reservable (the 1/2 by will did not pass by operation of law and hence is not reservable).

The question is, how much of Property I is reservable considering that only 1/2 of the entire

estate was passed by operation of law?

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According to reserva maxima:

The 1/2 shall be applied fully to the entire estate – hence coming up with the amount of

Php500000.00. This amount is then juxtaposed with the potentially reservable property (Property I) valued at Php600000.00 and as much as possible of Property I is deemed as reservable property. The net effect therefore is the maximization of reservable property. Hence, the amount of reservable property is Php500000.00.

According to reserva minima:

The 1/2 shall be applied to both Property I and II. And the only reservable property would be the 1/2 of the potentially reservable property which is Property I. Hence, in this case, the reservable property would only be Php300000.00. The net effect therefore would be the minimization of the reservable property.

Idem; When reservatario acquires right; effect. — Assuming

that the reservatario has all of the necessary qualifi cations, his

hope or expectancy over the reservable property is fi nally converted

into a perfected right upon the concurrence of two requisites — death

of the reservista and survival. Upon the death of the reservista, the

reservatario nearest the descendant-propositus becomes, automatically

and by operation of law, the absolute owner of the reservable

property.79 Consequently, the property is withdrawn automatically from the estate of the reservista. Hence, even the creditors of such

reservista cannot touch it. Furthermore, if in the decree of registration

there is an express recognition of the rights of the reservatario,

the acquisition of the property by such reservatario upon the death

of the reservista may be entered immediately in the property records

without the necessity of opening any state proceedings.

The RESERVEES or RESERVATARIOS Discussed

(a) The reservees are the relatives within the third degree

(from the propositus) who will become the full owners of

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the property the moment the reservor dies, because by

such death, the reserva is extinguished. Indeed the only

requisites for the passing of the title from the reservista

(reservor) to the reservatario (reservee) are: (1) death of

the reservista; and (2) the fact that the reservista had

survived the reservatario. (Cano v. Director of Lands, et

al., L-10701, Jan. 16, 1959).

The reserved property is not part of the reservista’s

estate upon his death. It does not even answer to the debts

of the latter [Cano vs. Director, 105 Phil. 1]. The reservable

property cannot be transmitted by a reservista to his or her

own successors mortis causa so long as a reservatorio within

the 3rd degree from the propositus are in existence when the

reservista dies.

Consequently, the creditors of the reservor cannot

attach or levy on execution a reservable property temporarily

held by the reservor.

oIt is a consequence of these principles that

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. As already

stated, 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

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records without necessity of estate proceedings,

since the basic requisites therefor appear of

record. [Cano v. Director]

o Of course, where the registration decree merely

specifies the reservable character of the

property, without determining the identity of the

reservatario or where several reservatarios

dispute the property among themselves, further

proceedings are unavoidable.

oAs a consequence of the rule laid down in

Cano, since the reserved property is not

computed as part of the reservista’s estate,

it is not taken into account in determining

the legitimes of the reservista’s compulsory

heirs.

Cano vs. Director of Lands

Facts: Cano registered lots with the condition that it is subject to

the right of reservation in favor of Guerrero. After Cano’s death,

Guerrero filed a motion in the Cadastral Court for the transfer of

the title to him, which was opposed by Cano’s sons, saying that it

must be ventilated in an ordinary contentious proceeding.

Held: the right of reservation was already expressly recognized,

thus all persons are barred from questioning the existence of the

elements of the reserva. The only requisites for the title to pass

from the reservista to the reservatario are:

1. Death of the reservista

2. Reservatario survived the reservista.

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The reservatario is not the reservista’s successor mortis causa nor

is the reservable property part of the reservista’s estate; the

reservatario receives the property as conditional heir of the

praepositus. Thus, upon the death of the reservista, the

reservatario nearest to the praepositus becomes the owner of the

reservable property automatically and by operation of law. Also,

the reservable property cannot be transmitted by the reservista

to her own successors if there are existing reservatarios within

the third degree.

VIII. Extinguishment

1. Death of reservista -- No more reserva troncal. The reservatorios get the property. If there

are no reservatorios, the prop. shall form part of the estate of the reservista. It is a kind of

delayed succession (JBL Reyes) from the prepositus.

Cano v. Director -- The reserved prop. does not form part of the reservista's estate if

there are reservatorios 2. Death of all the reservatorios -- Reservista's title to the prop. becomes absolute and

unconditional.

3. Fortuitous loss of the reserved prop. If the loss was due to the fault of the reservista, the

security will answer for the property.

4. Waiver by all the reservatorios provided no reservatorio is subsequently born -- This is a

tentative extinguishment bec. those subsequently born cannot be bound by the waiver. A waiver

is personal.

5. Registration of the prop. under the Torrens system by an innocent purchaser for value wherein

the reservable character of the prop. is not annotated on the title -- not really an extinguishment

but more of a freeing of the prop. The reservista, however, is liable for the value of the prop. plus

damages.

6. Extinctive prescription -- reservista adversely occupies the prop. or openly denies the

reserva.

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7. Merger -- Reservista can alienate -- but must be to all the reservatorios or if only to one,

then merger takes place only w/ regard to that share.

In settlement proceedings of the estate of the reservista, reservatorios may enter a claim

to exclude the prop. from the inventory. Reservatorios can also file an accion reivindicatoria.

However, this is usually consolidated w/ the settlement proceedings.

_______________________________

Beatriz L. Gonzalez vs. CFI of Manila, G.R. No. L-34395, May 19, 1981

(refer the case above)

Francisca T. De Papa vs. Dalisay T. Camacho, G.R. No. 1, 28032, September 24, 1986

Celedonia Solivio vs. Court of Appeals, G.R. No. 83484, February 12, 1990

Mariquita O. Sumaya vs. Intermediate Appellate Court, G.R. Nos. 68843-44, September 2, 1991

__________________________________________________

Art. 895 - Legitime of acknowledged natural children and natural children by legal fiction

ARTICLE 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a)

Eloy Imperial vs. Court of Appeals, G.R. No. 112483, October 8, 1999

-----

Art. 905

ARTICLE 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise.

-------

• Uson vs. del Rosario, G.R. No. L-4963, Jan. 29, 1953 Art. 908

DIGESTED CASE: USON v. DEL ROSARIO

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FACTS

Maria USON (petitioner) is the lawful wife of Faustino Nebreda who died in 1945.

Nebreda left 5 parcels of land in Labrador Pangasinan, which lands are the subject of an action for recovery of possession and ownership filed by USON against Maria DEL ROSARIO.

DEL ROSARIO is the common law wife of Nebreda to whom he begotten 4 illegitimate children.

USON contends that DEL ROSARIO deprived her of the possession and enjoyment of the lands in question. The latter, meanwhile, argues that Uson and Nebreda executed a public document whereby they agreed to separate as husband and wife. USON was given an alimony in consideration of which she gave up her rights to inherit any property from Nebreda.

The CFI ruled in favor of USON.

ISSUE: WON USON is the rightful heir?

HELD: YES!

When Faustino Nebreda died in 1945 the five parcels of land passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs . Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced.

Additional Facts and Ratio:

DEL ROSARIO contends that the 4 illegitimate children she had with Nebreda are entitled to successional rights by virtue of the new civil code promulgated on 1950. HOWEVER, the court ruled that while it is true that rights first declared in the new civil code are to be given retroactive effect, the same is subject to the condition that the said rights will not prejudice vested or acquired rights. Hence, given the background of the case, the children cannot have successional rights since USON’s rights would be prejudiced.

________________________________________________________________

SUPPLEMENTAL NOTES:

The vesting of the right occurs immediately upon the decedent’s death – without a

moment’s interruption. What are the consequences that flow from this principle?

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1. The law in force at the time of the decedent’s death will determine who the heirs should

be (see Uson vs. Del Rosario, 92 Phil 530 [1953], where the right of ownership to lands

acquired by succession were deemed vested on Maria Uson (the lawful wife) before the

passing of the New Civil Code and hence disallowing the application of the new right

recognized in the new law that would benefit the illegitimate children of the decedent with

Maria del Rosario; and Montilla vs. Montilla, 2 SCRA 695 [1961], where the rules of the

Old Civil Code applied because the decedent died in 1946)

(please refer to the Digested Case and Supplemental Notes above)

______________________________________________________________

Art 908

ARTICLE 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (818a)

Del Val vs. Del Val, 29 Phil 534

BEWARE: This is in application of Insurance proceeds (Section 53) Digest and not a SUCCESSION DIGEST

FRANCISCO DEL VAL ET AL.vs. ANDRES DEL VAL

Facts:

Plaintiff and defendant are siblings who are heirs at law of Gregorio Nacianceno del Val, who died intestate. The deceased, during his lifetime, took out an insurance on his life for the sum of P40,000 and made it payable to the defendant as sole beneficiary. Plaintiffs contend that the amount of the insurance policy belonged to the estate of the deceased and not

to the defendant personally; that, therefore, they are entitled to a partition not only of the real and personal property, but also of the P40,000 life insurance.

Issue:

Whether or not the insurance policy belongs to the estate

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Ruling:

With the finding of the trial court that the proceeds of the life-insurance policy belong exclusively to the defendant as his individual and separate property, we agree. That the proceeds of an insurance policy belong exclusively to the beneficiary and not to the estate of

the person whose life was insured, and that such proceeds are the separate and individual property of the beneficiary, and not of the heirs of the person whose life was insured, is the doctrine in America. We believe that the same doctrine obtains in these Islands

by virtue of section 428 of the Code of Commerce, which reads:

"The amounts which the underwriter must deliver to the person insured, in fulfillment of the contract, shall be the property of the latter, even against the claims of the legitimate heirs or creditors of any kind whatsoever of the person who effected the insurance

in favor of the former."

It is claimed by the attorney for the plaintiffs that the proceeds of the insurance policy were a donation or gift made by the father during his lifetime to the defendant and that, as such, its ultimate destination is determined by those provisions of the Civil Code which relate to donations, especially article 819. This article provides that "gifts made to children which are not betterments shall be considered as part of their legal portion." We cannot agree with these contentions. The contract of life insurance is a special contract and the destination of the proceeds thereof is determined by special laws which deal exclusively with that subject.

The Civil Code has no provisions which relate directly and specifically to life-insurance contracts or to the destination of life insurance proceeds. That subject is regulated exclusively by the Code of Commerce which provides for the terms of the contract, the relations of the parties and the destination of the proceeds of the policy.

__________________________________________________

SUPPLEMENTAL NOTES:

Idem; Id.; Id. — Donations to be collated. —

Whether the donation was made to a compulsory heir or to a stranger, the value thereof at the time when it was made shall be added to the net value of the hereditary estate for the purpose of determining the legitime of compulsory heirs and the portion at the testator’s

free disposal. That donations inter vivos made to compulsory heirs shall be collated is evident from the provision of Art. 1061 of the Code. In case of donations inter vivos to strangers, the basis of the rule is found in the prohibition of inoffi cious donations, or those

366 | P a g e

which impair the legitime of compulsory heirs (Arts. 752, 771, Civil Code). Besides, under the second paragraph of Art. 909, such donations are imputable against the portion at the testator’s free disposal in order to determine whether they are inofficious or not.

It is clear that before they can be so imputed and before they can be considered inofficious, it is essential that their value must be added to the net remainder of the estate in order to determine the legitime of compulsory heirs and the portion at the testator’s free disposal

against which they are imputable. This has been the consistent doctrine enunciated by the Supreme Tribunal of Spain and by the majority of Spanish commentators. This is also the view upheld by practically all Filipino commentators and by an obiter dictum of the Supreme Court in the case of Liguez vs. Court of Appeals.How about the proceeds of a life insurance policy, where the beneficiary is a third person or even a compulsory heir, shall such proceeds be collated or not?

In the case of Del Val vs. Del Val, where the benefi ciary was a third person, it was held that the proceeds of an insurance policy belong exclusively to the beneficiary and not to the estate of the insured; consequently, the provisions of the Civil Code with regard to collation cannot apply. It is believed that the same principle can be applied where the benefi ciary is a

compulsory heir: As far as the premiums are concerned, although they partake of the nature of donations, commentators sustain the view that so long as they are paid from the income of the insured and are not excessive, they are not subject to collation.

____________________________________________

Art 909 - Donations to children shall be charged to legitime

ARTICLE 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)

____________________________________

Canuta Pagkatipunan vs. Intermediate Appellate Court, G.R. No. 70722, July 3, 1991

DIGESTED CASE: G.R. No. 70722 July 3, 1991

CANUTA PAGKATIPUNAN vs. INTERMEDIATE APPELLATE COURT

Facts:

Jose Velasquez, Sr. died intestate. Petitioner Canuta Pagkatipunan is the surviving spouse and the other 13 petitioners are their children. The respondents are his descendants with his first wife Victorina Real who died in 1920. The controversy in this case is the liquidation of the conjugal partnership properties acquired by the deceased in his two marriages. It appears that after the death of Real in 1920, no dissolution has been made. Neither had there been any liquidation of the second

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partnership after the death of Jose Velasquez, Sr. in 1961. Based on the Report submitted by the commissioners, all of the 20 properties were acquired by the decedent during his first marriage. A judgment was rendered by the trial court: 1) Declaring the properties as belonging to the estate from the first marriage; 2) Confirming all the conveyances executed by the decedent during his lifetime; 3) Declaring null and void the transfers executed by Pagkatipunan in favor of her sister which was reconveyed to her and the deeds of assignments executed by Pagkatipunan in favor of her children; 4) Ordering the partition of the house and lot in West Avenue, Quezon City. The Intermediate Appellate Court promulgated a decision, affirming the decision of the trial court.

Issue:

Whether or not the trial court erred in holding that the entire estate belonged to the first marriage.

Held:

The Court finds that both the lower Courts failed to consider the following basic principles which renders the appealed decision defective:

ART. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them.

It is undeniable that numerous donations inter vivos were made by the decedent in favor of some of his compulsory heirs. It appears that there was no determination whatsoever of the gross value of his conjugal properties with Real. Likewise, no collation of the donations he executed during his lifetime was undertaken by the trial court. Thus, it would be extremely difficult to ascertain whether or not such donations trenched on the heirs’ legitime.

Article 909 of the Civil Code provides: “ Donations given to children shall be charged to their legitimes. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code."

Relative to the sale executed by Pagkatipunan to her sister and the resale of the same property to her and the subsequent deeds of assignment she executed in favor of her children, the trial court had clearly established that Pagkatipunan employed fraudulent acts to acquire title over the said properties. Hence, the said sales and assignments are null and void, sham and fictitious. No conclusion as to the legal share due to the compulsory heirs can be reached in this case without (1) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs.

Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for further proceedings and the same Court is directed to follow the procedure for partition herein prescribed.

________________________________________________

DIGESTED CASE: Pagkatipunan v. IAC

GR 70722, July 3, 1991

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FACTS:

Petitioner Canuta Pagkatipunan is the surviving spouse of Jose Velasquez, Sr. and the other 13 petitioners are their children. On the other hand, respondents Jose Valencia,

Jr., et al., are Jose, Sr.’s descendants with his fi rst wife Victorina Real who died in 1920. No dissolution of the fi rst conjugal property had been made after Victoria’s death. So, Jose, Sr.

enjoyed full possession, use, usufruct and administration of the whole conjugal property of the fi rst marriage. In 1930, Jose, Sr., took Canuta as his second wife although they cohabited as early as 1921, when she was 16, soon after his fi rst wife’s death. From this marriage, the other 13 co-petitioners were born.

Neither had there been any liquidation of the second conjugal partnership after Jose, Sr.’s death in 1961. Jose Valencia, Jr., et al. sued Canuta Pagkatipunan, et al. in 1969 in a complaint entitled “accion reivindicatoria, annulment of deeds of sale, partition and damages.’’ However, both the trial and the appellate courts considered the real controversy to be liquidation of the conjugal partnership properties acquired by the deceased Jose, Sr., in his two marriages with Victorina Real, who predeceased him, and Canuta Pagkatipunan, as

well as the partition of Jose, Sr.’s estate among his heirs. The Court appointed two sets of commissioners. The fi rst set made and submitted an inventory of Jose, Sr.’s estate. The second set determined which of the parcels of land listed in the inventory submitted by the first set of commissioners belong to the conjugal partnership of the fi rst marriage or to that

of the second marriage. The three members of the second set of commissioners expressed divergent fi ndings and opinion. They refused to make fi ndings on the nature of the properties because petitioners had caused the issuance of titles covering said properties. But the commissioners agreed that all the other properties listed in the inventory belonged to the conjugal partnership of the fi rst marriage. After Jose, Sr.’s death, Canuta acquired full possession of the properties. On March 4, 1967, she sold the same property to the spouses Moises and Magdalena Pagkatipunan. The property was later resold to Canuta. During the pendency of the suit, this property was subdivided and assigned by Canuta in favor of her thirteen children. The trial court: (1) declared the properties listed in the inventory as belonging to the conjugal partnership of Jose Sr. and Victorina; (2) confi rmed all the conveyance, by sale or donation, executed by Jose Sr., during his lifetime; (3) declared

fi ctitious and void, the sale executed by Canuta in favor of Magdalena and the deeds of assignment she executed in favor of her children; (4) declared fi ctitious and void, the sales by Canuta in favor of her children and Magdalena, and ordered Canuta and children to deliver possession of the properties to the plaintiff. The Intermediate Appellate Court affi rmed the trial court’s decision.

HELD:

The Supreme Court set aside the decision of the trial court and remanded the case to the Regional Trial Court for further proceedings and ruled that both the trial court and

the Court of Appeals failed to consider some basic principles in the law on succession. Such an oversight renders the appealed decision defective and hard to sustain. Before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken fi rst. The Court of Appeals affirmed the trial court’s decision that Jose, Sr. had already disposed of and exhausted his corresponding share in the conjugal partnership owned by him and Victorina, so that his heirs have nothing more to inherit from him. Hence, whatever remaining portion of the conjugal property must

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necessarily appertain only to respondents as heirs of Victorina Real. The trial court failed to consider Articles 908 and 1061 of the Civil Code. Jose, Sr. made numerous donations inter vivos in favor of his compulsory heirs. Yet, there was no determination whatsoever, of the gross value of the conjugal properties of Jose Sr., and Victorina Real. Obviously, it is impossible to determine the

conjugal share of Jose Sr. from the said property relationship. Likewise, no collection of the donations he executed during his lifetime was undertaken by the trial court. Thus, it would be diffi cult to ascertain whether or not such donations trenched on the heirs’ legitime so that the same may be considered subject to reduction for being inoffi cious.

Relative to the sale executed by Canuta to Magdalena, the resale of the same property to her and the subsequent deeds of assignment she executed in favor of her children, the trial court had established that Canuta employed fraudulent acts to acquire title over the said properties. Hence, the trial court and the Court of Appeals correctly ruled that said sales

and assignments are void, sham and fi ctitious. The fact that petitioners had succeeded in securing title over the said parcels of land does not warrant the reversal of the trial court’s ruling that the above mentioned sales and assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud notwithstanding the long-standing rule that registration is a constructive notice of title binding upon the whole world. If the registration of land is fraudulent and the person in whose name the land is registered thus holds it as a mere trustee, the real owner is entitled to fi le an action for reconveyance of the property within a period of ten years. While the trial court has authority to order the reconveyance of the questioned titles, the court cannot agree that the reconveyance should be made in favor of respondents. The reason is that it is still unproven whether or not respondents are the only ones entitled to the conjugal properties of Jose, Sr. and Victorina Real. As the lawful heirs of Jose, Sr. the petitioners are also entitled to participate in his conjugal share. To reconvey said property in favor of respondents alone would not only be improper but will also make the situation more complicated. There are still things to be done before the legal share of all the heirs can be properly adjudicated.

The appellate court properly adjudicated the one-half portion of the house and lot situated in West Avenue as belonging to the petitioners to the extent of their respective proportional

contributions and the other half to the conjugal partnership of Jose, Sr. and Canuta. It is modifi ed as it readily partitioned the conjugal share of Jose, Sr. to his 18 heirs. No conclusions as to the legal share due to the compulsory heirs can be reached in the case without: (1) determining fi rst the net value of the estate of Jose, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of

the compulsory heirs.

Pagkatipunan v. IAC GR 70722, July 3, 1991

Art. 1061 of the Civil Code provides: Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any

other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.

Art. 947

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ARTICLE 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs.

Benedicto; Administratrix vs. Javellana, 10 Phil 197

This is a Special Proceeding Digest:

BENEDICTO V. JAVELLANA 10 PHIL 197

February 21, 1908

FACTS

- For enforcing will made by Maximo Jalandoni, his bro, Maximino Jalandoni petitioned that the administrator / executor, Julio Javellana, be directed to pay him P985 w/c he held in lieu of land donated to petitioner.

- Maximino alleged that 1/2 of Hacienda Lantad was bequeathed to him, w/c was subject to

payment of debts / expenses of estate w/ respect to products of 1903-1904, and w/c had already been applied to that object by administrator Javellana.

- Half of the hacienda was sold w/ consent of Javellana, P985 remaining in his possession from the proceeds.

- Maximino alleges that as Javellana had already rcvd products of hacienda, he’s no longer entitled to retain any portion of the legacy, nor demand that he shld respond for other debts / expenses, bec w/ the value of the portion inherited by heirs Francisco & Sofia Jalandoni, there was more than would be required to pay other debts of estate and expenses.

- Javellana alleged that it wasn’t proper to ask by motion for relief that Maximino claimed.

Complaint shld’ve been filed and action brought against legatees or parties concerned and not against administrator alone. He alleged that Francisco & Sofia Jalandoni shldn’t be considered heirs but simply as legatees. He also alleged that the amt w/ him was not P985 but P949.29

- Judge granted the motion. Javellana appealed.

ISSUES

1. WON the legatees are liable to pay debts / expenses of the estate

2. WON separate action is proper for the reliefs prayed for

HELD

1. YES (Order granting Maximino’s motion shld be reversed)

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- Testator left no lawful ascendants / descendants. He distributed all his prop in

legacies, notwithstanding manner in w/c he designates his nephews Francisco & Sofia

Jalandoni, such nephews are likewise legatees.

- The will of testator must be respected & complied with. He imposed on his entire estate

the obligation to pay his debts w/ products of the same. He prescribed manner in w/c same shall be done until all obligations are extinguished.

- Code of Civil Procedure: If testator makes provision by will or designates estate to be

appropriated for payment of debts & expenses, they shall be pd accdg to will. But if provision

made by will or estate isn’t sufficient, such part of the estate as is not disposed of by will, if any, shall be appropriated for that purpose.

- Since those who benefited fr the will have not rcvd a universal succession to the estate, but

certain prop expressly stated in the will, they shld be considered merely as legatees, w/o right to rcv share of the prop of the deceased until after his debts have been pd. None of the parties interested in the will is invested w/ the character of heir.

- In this case, the parties in interest were indiscriminately designated as heirs or legatees.

- Code of Civil Procedure: As to specific devises, Sec 729 provides exemption fr payment of debts & expenses if there’s sufficient other prop.

- Debts & expenses, in this case, must be pd pro rata by legatees in manner provided in the will or in accordance w/ Code of Civil Procedure.

2. NO

- Any challenge to the validity of the will, any objection to the authentication, every demand / claim w/c party in interest may make must be acted upon and decided w/in same special

proceedings, not in a separate action. Judge having jurisdiction in administration of estate

shall take cognizance of question.

___________________________

Art. 950

ARTICLE 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata.

______________________

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Joc-soy vs. Vano, 8 Phil 119

DIGESTED CASE: Chiong Joc-Soy v. Vaño

Facts:

Genoveva Rosales, testatrix, stated in her will that she bequeathed a third part of her estate at her free disposal to Chiong Joc-Soy, the sum of 50,000 Mexican currency, of which the amount 20,000 was for Chiong and the balance of 30,00 was for the expenses of her late husband, Nicasio Veloso.

Issue: WON legacy was conditional

Held:

No, the testatrix did not intend to impose upon the legatee any condition in making the gift of 30,000. She wished that Chiong spend the 30,000. Her husband was a chinaman just like Chiong. The manner in which Chinese spend money to perpetuate the memory of a deceased person of their race does not appear, nor the amount that they are accustomed to spend nor the time which it may be expended. The legacy is not conditional because she intended another chinaman to carry out these tasks.

______________________________

SUPPLEMENTAL NOTES:

Idem; Fulfillment or compliance. —

The person or persons who are entitled to demand compliance with the mode or obligation

are those who are directly interested in the obligation. If no person is directly interested in its fulfi llment, or the identity of the person interested cannot be determined, the obligation is a mere advise or recommendation of the testator without any coercive force. In other

words, it becomes a mere imperfect obligation of the heir, devisee or legatee.

When may the inheritance or property be claimed by the heir, devisee or legatee? According to Art. 882, the delivery or payment of the inheritance, devise or legacy can be claimed immediately. However, it is a necessary condition before

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delivery or payment is to be made that the instituted heir, or the devisee or legatee, or the heirs of such heir, devisee or legatee shall fi le a bond as security for the performance or fulfi llment of the obligation. In case of failure to comply with the mode or obligation, the heir, devisee or legatee shall

be compelled to return whatever he may have received by virtue of the institution or of the devise or legacy, together with its fruits or interests. In case he cannot, the bond or security can be made to answer for any deficiency.

Compared with the old Civil Code

(a) In the old Civil Code, the heir or the legatee himself was not required to give the security. Only the heirs of the heir or the heirs of the legatee were so required. (Chiong

Joc-Soy v. Vano, 8 Phil. 119; Art. 797, par. 2, old Civil Code).

Reason: The instituted heir or legatee was assumed to enjoy the trust and confi dence of the testator. (b) In the new Civil Code, the heir himself or his own heirs (as the case may be) are bound to give the security. (Art. 882, par. 2).

(e) “I bequeath to Yla my property and desire her to expend in good works all in excess of that which is necessary for her support. I name her as my heir so that she may attend to the better education of her children.” Is this a conditional institution, a modal institution, or merely an expression of personal opinion as to the best disposal of the estate?

According to Scaevola, this is merely an expression of personal opinion of the testator as to the best disposal of the estate, and, therefore, in no way binds the heir. (Scaevola on the Civil Code 646 cited in Chiong Joc-Soy v. Vano, 8 Phil. 119).

QUESTION:

A gave B, a Chinese, legacy of P500,000, P200,000 of which was for himself, and the remaining P300,000 “for the expenses of interment of my late husband Don Nicasio

Veloso.” Does B have to give a bond?

ANS.:

This is not a conditional legacy. The Supreme Court therefore decided under the old Civil Code that B does not have to give a bond. (Chiong Joc-Soy v. Vano, 8 Phil. 119). But under the new Civil Code, he should give the bond. (Art. 882).

The Giving of Pensions

(a) Note that the law says “the legatee (of the pension) may petition the court for the fi rst installment upon the death of the testator.” It is submitted that he should fi rst wait

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until an order for distribution has been made by the court, or until distribution is actually made (if there be no such order), for after all, the estate’s debts must fi rst be paid.

(See Rule 90, Sec. 1, Rules of Court).

(b) However, support in arrears (from the time of death) should logically be given, since this seems to be the clear intent of the law (“upon the death of the testator”).

[NOTE however, that in legacies of money not intended for support or for education — interest thereon accrues only from the date of judicial demand.]. (Fuentes, et al. v. Canon, et al., 6 Phil. 117; Chiong Joc-Soy v. Vano, et al., 8 Phil. 119).

Rule in Case of Money

Money is generic, and it has been held that interest thereon at six per cent per annum may be recovered from the time there is default in the delivery of the money legacy. And there

is default, once demand is made. (Joc-Soy v. Vano, 8 Phil. 119; 15 Scaevola 353).

__________________

Art. 956

Parish Priest of Victoria vs. Rigor, 89 SCRA 493

DIGESTED CASE: Parish Priest of Victoria v. Rigor

- This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba, Nueva Ecija, with a total area of around forty- four hectares.

- That devise was made in the will of the late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who would study for the priesthood.

- The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the decision of the Court of Appeals affirming the order of the probate court declaring that the said devise was inoperative.

- The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will was executed and probated by the Court of First Instance of Tarlac.

- Named as devisees in the will were the testators nearest relatives, namely, his three sisters: Florencia Rigor- Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.

- To implement the foregoing bequest, the administratix submitted a project containing the following item:

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o 5. LEGACY OF THE CHURCH

o That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who shall take the priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real properties xxx

- Judge Roman A. Cruz approved the project partition

- It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and implications of Father Rigor's bequest to his nearest male relative who would study for the priesthood.

- Inasmuch as no nephew of the testator claimed the devise and as the administratrix and the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the same were not delivered to that ecclesiastic. The testate proceeding remained pending.

ISSUE :

WON the ca erred when it ruled that the will violate the rule against perpetuities ? No

HELD:

appealed dismissed. Affirmed.

- We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" (Art. 1025, Civil Code).

- The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention.

- Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in 1935 he had a nephew who was studying for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that "not male relative of the late (Father) Pascual Rigor has

ever studied for the priesthood" (pp. 25 and 35, Record on Appeal).

- Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was likewise inoperative.

- The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists" .

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- This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides that legal succession takes place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.

- The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator's win is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

___________________________

SUPPLEMENTAL NOTES:

PARISH PRIEST OF VICTORIA V. RIGOR (CIVIL)

The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely expressed, any iterpretation must be in accord with the plain and literal meaning of his words, except when it may certainly appear that his contention was different from that literally expressed.

The intent of the testator is the cardinal rule in the construction of wills. It is the greatest rule in giving effect to a will.

From the testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say masses for the repose of the souls of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: (a) during the interval of time that no nearest male relative of the testator was studying for priesthood; and (b) in case the testator's nephew became a priest and he was excommunicated.

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria as envisaged in the will was likewise inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in his favor assumes that he was a trustee or a substitute devisee. The contention is untenable. A reading of the testamentary provisions does not support the view that the parish priest was a trustee or a substitute devisee in the event that the testator was not survived by a nephew who became a priest.

The CA correctly rules that this case is covered by Article 956 of the Civil Code which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in this the right of accretion exists."

This case is also covered by Article 960(2) which provides "legal succession takes place when the will does not dispose of all the belongings to the testator." There being mo substitution nor accretion as to the said ricelands, the same should be distributed among the legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.

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The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. If a conditional legacy does not take effect, there will be intestate succession as to the property recovered by the said legacy.

Labels: Mixed Succession, Uribe-assigned case digest

----------------------

What is the rule as to capacity when the institution is subject to a suspensive term?

The requirement of being alive applies only at the moment of the decedent’s death, the successor need not be alive when the term arrives.

Is representation an exception to the general rule that the heir must be living when the succession opens?

No. Notwithstanding the last phrase of the first paragraph of Article 1025, the requirement that the successor should be alive when the decedent dies is absolute. Ultimately, for representation to occur, the representation must at least already be conceived

when the decedent dies. (Articles 971 and 973) A case that deals with this rule is Parish Priest of Roman Catholic Church of Victoria, Tarlac vs. Rigor (89 SCRA 493 [1979]) where the testator devised ricelands that belonged to him to his nearest male relative who would become a priest. According to the Supreme Court, “We hold that the said bequest refers to the testator’s nearest male relative living at the time of this death and not to any indefinite time thereafter… The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator’s nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of this estate.”

Note:

In the abovementioned case, the Court made a comment to the effect that if the testator

had expressly placed a provision in the will allowing for an indefinite period of time after his death to include such a devisee, then the devisee need not be living at the time of the death of the testator. This should be considered as a mere obiter. Ultimately, a testator cannot validly institute someone not yet living at the time of his death.

What is the requirement for juridical persons to succeed?

It must already exist as a juridical person when the decedent dies.

Who are incapable of succeeding?

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1. The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

2. The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization or institution to which such priest or minister may belong;

3. A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;

4. Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;

5. Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

6. Individuals, associations and corporations not permitted by law to inherit.

Effect of Ineffective Legacies or Devises. —

There are three cases or situations contemplated by the above article. In the first place, the legatee or devisee may be incapacitated to succeed the testator in accordance with the rules laid down in Arts. 1024 to 1040 of the Code; in the second place, he may repudiate the legacy or devise which is his perfect right in accordance with the rules stated in Arts. 1041 to 1057; and in the third place, the legacy or devise may become ineffective for some reason such as transformation, alienation or destruction of the object, or the non-fulfi llment of a suspensive, condition. In all of these cases, the legacy or devise shall be merged with the mass of the hereditary estate, except in cases of substitution or accretion.

Parish Priest of Roman Catholic Church of Victoria, Tarlac vs. Rigor

89 SCRA 493

The record discloses that Fr. Pascual Rigor died in 1935. He left a will which was duly admitted to probate. The project of partition was also approved and implemented. Named as devisees were the testator’s nearest relatives, namely, his three sisters and a fi rst cousin. In addition, it contained the controversial devise or bequest of four parcels of land with a total area of forty four hectares in favor of his nearest male relative who would study for the priesthood and become a priest. Attached to this conditional devise is the appointment of the parish priest of Victoria, Tarlac as administrator of the four parcels of land during the interval of time that no nearest male relative of the testator was studying for the priesthood.

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About thirteen years after the approval of the project of partition, the parish priest of Victoria fi led a petition in the pending testate proceeding for the appointment of a new administrator

because the old one died. A new administrator was appointed. Subsequently, the priest fi led a petition for the delivery of the four parcels of land to the Church as trustee. This petition

was opposed by the intestate heirs. The petitioner contends that the intention of the testator

in case no nearest relative of his should become a priest is to create a public charitable trust with the church as trustee or substitute devisee. The intestate heirs, on the other hand, contend that since the devise became inoperative because of the fact that no nearest relative of the testator became a priest, the rules of intestacy should now apply with respect to the subject matter of the devise. Speaking through Justice Aquino, the Supreme Court held:

“In this case, as in cases involving the law of contracts and statutory construction, where the intention of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the determination of the testator’s intention which is the law of the case (dicat testator et erit lex). (Santos vs. Manarang, 27 Phil. 209, 215; Rodriquez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546).

“The will of the testator is the fi rst and principal law in the matter of testaments. When his intention is clearly and precisely expressed, any interpretation must be in accord with the plain and literal meaning of his words, except when it may certainly appear that his intention

was different from that literally expressed (In re Estate of Calderon, 26 Phil. 333).

“‘The intent of the testator is the cardinal rule in the construction of wills.” It is “the life and soul of a will.” It is “the fi rst greatest rule, the sovereign guide, the polestar, in giving effect to a will”. (See Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8). “One canon in the interpretation of the testamentary provisions is that “the testator’s intention is to be ascertained from the words of the will, taking into consideration

the circumstances under which it was made”, but excluding the testator’s oral declarations as to his intention (Art. 789, Civil Code of the Philippines).

“To ascertain Father Rigor’s intention, it may be useful to make the following restatement of the provisions of his will:

1. That he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an ecclesiastical career until his ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the ricelands, and once ordained as a priest, he could continue

enjoying and administering the same up to the time of his death but the devisee would cease to enjoy and administer the ricelands if he discontinued his studies for the priesthood.

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4. That if the devisee became a priest, he would be obligated to celebrate every year twenty massess with prayers for the repose of the souls of Father Rigor and his

parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration of the ricelands would pass to the incumbent parish priest of Victoria and his successors.

6. That during the interval of time that there is no qualified devisee, as contemplated above, the administration of the ricelands would be under the responsibility of the incumbent parish priest of Victoria and his successors, and

7. That the parish priest-administrator of the ricelands would accumulate annually the products thereof, obtaining or getting from the annual produce fi ve percent thereof for his administration and the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for each year, depositing the balance of the income of the devise in the bank in the name of his bequest.

“From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say annually twenty masses with prayers for the repose of the souls of

the testator and his parents.

“On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: one, during the interval of time that no nearest male relative of the testator was studying for the priesthood and two, in case the testator’s nephew became a

priest and he was excommunicated. “What is not clear is the duration of “el intervalo

de tiempo que no haya legatario acondicionado”, or how long after the testator’s death would it be determined that he had a nephew who would pursue an ecclesiastical vocation.

It is that patent ambiguity that has brought the

controversy between the parish priest of Victoria and the testator’s legal heirs.

“Interwoven with that equivocal provision is the time when the nearest male relative who would study for the priesthood should be determined. Did the testator contemplate

only his nearest male relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime after his death? “We hold that the said bequest refers to the testator’s nearest male relative living at the time of his death and not to any indefi nite time thereafter. “In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper” (Art. 1025, Civil Code).

“The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator’s nearest male relative at anytime after his death would render the provision diffi cult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention.

“In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specifi ed his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with certitude what category

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of nearest male relative would be living at the time of his death, he could not specify that his nearest male relative would be his nephew or grandnephews (the sons of his nephew or niece) and so he had to use the term “nearest male relative.”

“It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao, the testator’s nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in the lower court the affi davit of Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor’s death, her own son, Valentin Gamalinda, Jr., did not claim the

devise, although he was studying for the priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that devise for his nearest male

relative belonging to the Rigor family (pp. 105-114, Record on Appeal).

“Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Gunanan, was not the one contemplated in Father Rigor’s will and that Edgardo’s father told her that he was not consulted by the parish priest of Victoria before the latter filed his second motion for reconsideration which was based on the ground that the testator’s grandnephew, Edgardo, was studying for the priesthood at the San Jose Seminary. “Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that reason, the legal heirs appraised the Court of Appeals that the probate court’s order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,

Appellant’s brief). “Of course, Mrs. Gamalinda’s affi davit, which is tantamount

to evidence aliunde as to the testator’s intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to the testator’s nephew who was living at the time of his death, when his succession was opened and the successional rights to his estate became vested, rests on a judicious and unbiased reading of

the terms of the will.

“Had the testator intended that the “cualquier pariente mio varon mas cercano que estudie la carrera eclesiastica” would include indefi nitely anyone of his nearest male relatives born after his death, he could have so specified in his will. He must have known that such a broad

provision would suspend for an unlimited period of time the effi caciousness of his bequest.

“What then did the testator mean by “el intervalo de tiempo que no haya legatario acondicionado”? The reasonable view is that he was referring to a situation whereby

his nephew living at the time of his death, who would like to become a priest, was still in grade school or in high school or was not yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before the nephew entered the seminary. But the moment the testator’s nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that event, the trusteeship

would be terminated.

”Following that interpretation of the will, the inquiry would be whether at the time Father Rigor died in 1935 he had a nephew who was studying for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant priest’s petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that “no nearest male relative of the late (Father) Pascual Rigor

has ever studied for the priesthood” (pp. 25 and 35, Record on Appeals). “Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion

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is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise

inoperative.

“The appellant in contending that a public chari table trust was constituted by the testator in his favor assumes that he was a trustee or a substitute devisee. That contention is untenable. A reading of the testamentary provisions regarding the disputed bequest does not support the view that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a nephew who became a priest.

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

priest.

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

“This case is also covered by Article 912 (2) of the old Civil Code, now Article 960 (2), which provides that legal succession, takes place when the will “does not dispose of all that belongs to the testator.” There being no substitution nor accretion as to the said ricelands, the same should be distributed among the testator’s heirs. The effect is as if the testator had made no disposition as to the said ricelands.

“The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator’s will is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property covered by the said legacy (Macrohon

Ong Ham vs. Saavedra, 51 Phil. 267). “We find no merit in the appeal. The Appellate

Court’s decision is affi rmed. Costs against the petitioner.“SO ORDERED.”

Mixed Succession

Parish Priest of Roman Catholic Church of Victoria, Tarlac v. Rigor

L-22036, Apr. 30, 1979

The decedent may have died partly testate and partly intestate. Insofar as the will disposes of certain properties, this is generally the law that should govern.

Rigor v. Rigor L-22036, Apr. 30, 1979

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A devise of a parcel of land in favor of the “nearest male relative” of the testator who would study for the priesthood should be given to the nearest male relative living at the time of the testator’s death (provided of course that the condition is fulfi lled), and not at any indefi nite

time thereafter.

______________

Art. 959

ARTICLE 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree.

Singson vs. Lim, 74 Phil 109

DIGESTED CASE: Singson v. Lim (Coherco, Calvin Ryan)

Vicente Singson Pablo died without any descendant or ascendant, his nearest surviving relatives being his widow Doña Rosalia Rosario, four brothers, and four nieces, the children of a deceased sister. He left a will which was duly probated, clause 8 of which states that all his property not otherwise disposed of in this will, be distributed equally to all those entitled to it.

The widow, as administratrix, presented a project of partition in which the properties not disposed of in the will were adjudicated to the four brothers and the four nieces of the deceased. The brothers, appellants herein, objected to the project of partition insofar as it includes the nieces of the deceased, on the ground that in relation to article 751 of the Civil Code, they were not entitled to any share. The trial court ruled for the nieces and held that other properties should be included as well.

Issue:

WON the clause in his contract saying that "all of my properties not disposed of otherwise in this testament shall be distributed in equal parts to all who are entitled thereto" should be read in connection with article 751, which provides that "a disposition made in general terms in favor of the testator's relatives shall be understood as made in favor of those nearest in degree."

Held:

The authorities differ on the interpretation of article 751. Some hold that under said article the nephews and nieces inherit by representation together with the brothers and sisters of the testator, as in legal succession; while others. Manresa among them, hold that said article excludes nephews and nieces when brothers and sisters survive. We think the testator, by referring to "all who are entitled thereto," instead of referring to his "relatives," precisely

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meant to avoid the uncertainty of the interpretation of article 751 and to indicate his wish that the residue of his estate be distributed in equal parts to all who would have been entitled to inherit from him had he dies intestate.

_________________________________

SUPPLEMENTAL NOTES:

ROSARIO VDA. DE SINGSON V. DE LIM

Facts:

Pablo, a lawyer, died. His nearest surviving relatives are his widow, 4 brothers and 4 nieces. His will provides that all properties not disposed of otherwise in the testament shall be

distributed in equal parts to all who are entitled thereto.

Held:

By referring to “all who are entitled thereto” rather than “relatives”, he intended that the residue of his estate be distributed in equal parts to all entitled should he die intestate.

This was precisely meant to avoid the uncertainty in the interpretation of Art. 959.

-------

Dispositions in Favor of Relatives. —

The rule stated in the above article is applicable not only to legacies and devises, but

also to institution of heirs. Therefore, if the testator states in his will that he is leaving all of his properties to all of his relatives, or that all of his personal or real properties shall be divided among his relatives, according to the above article, the testamentary disposition

shall be understood to be in favor of those nearest in degree. In other words, there is only one rule that will apply and that is the rule of proximity.Consequently, the other rules of intestate succession, such as the rule of preference between lines,

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the right of representation and the rule of double share for full-blood collaterals are not applicable.It must, however, be noted that the law speaks only of dispositions made in general terms in favor of the testator’s relatives. Thus, in Vda. de Singson vs. De Lim,71 where the testator stated in his will that all of his properties not disposed of in the will “shall be distributed in equal parts to all who are entitled thereto,” it was held that the rule enunciated in what is now Art. 959 of the Code cannot be applied. The testator, who was a lawyer, by referring to “all who are entitled thereto,” instead of his relatives, clearly intends that the properties shall be given to those entitled thereto in accordance with the rules of intestate succession. Therefore, not

only the rule of proximity, but other rules of intestate succession, such as the right of representation, must be applied.

The application of the rule enunciated in Art. 959 may be illustrated by the following problem:

Problem —

Before his death in an automobile accident, A was able to execute a will. In the will he expressly stated that he is leaving all of his properties to all of his relatives. During the

proceedings for the settlement of his estate, the following filed their claims as heirs: (1) B, his widow; (2) C and D, his brothers; and (3) E and F, his nephews, children of a deceased sister. The net remainder of his estate is P60,000. How shall the distribution

be made?

Answer —

It is clear that the case falls squarely within the purview of Art. 959 of the Code. The disposition is made in general terms in favor of the testator’s relatives. Hence, there is

only one rule that will apply and that is the rule of proximity. E and F, nephews of the testator, cannot inherit by right of representation, not only because of the rule that only a compulsory heir can be represented in testamentary succession (and certainly

a brother or sister is not a compulsory heir), but also because of the fact that Art. 959 of the Code excludes the application of such right. Hence, they are excluded by C and D, brothers of the testator. B, the widow of the testator, on the other hand, is not a “relative” of the testator within the meaning of Art. 959. Under this article, “relatives” refer to those who are related to the testator by consanguinity, not by affi nity. Therefore, B cannot participate in the inheritance, but only with respect to the disposable free portion. Being a compulsory heir, her legitime cannot be impaired. Consequently, the inheritance shall be distributed

as follows:

B .......................... P30,000, as a compulsory heir,

C ........................... 15,000, as a voluntary heir,

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D ........................... 15,000, as a voluntary heir.

Some Problems

(a) A testator gave all of his cash assets to “the relatives of my wife.” Can Art. 959 apply to this will?

No, says Scaevola, because the law speaks of the testator’s relatives.

The provision regarding “those nearest in degree” cannot be applied. (15 Scaevola 227).

(b) A testator gave some of his properties “to all who are entitled thereto?”

(Art. 959 cannot be applied because the clause evidently refers to the intestate heirs, and not to the “testator’s relatives.”) Here, those who were left were the widow, four brothers, and four nieces. The nieces were the children of a deceased sister. Said nieces were allowed

to inherit together with the brothers. (Singson v. Lim, 47 Phil. 109).

[NOTE:

(a) The rules given in the above-cited comments may of course be varied or changed by the testator in his will, for after all, his intent must prevail. (6 Manresa 43).

___________________________

Art. 960 - Legal or intestate succession

ARTICLE 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

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(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

Lourdes L. Dorotheo vs. Court of Appeals, G.R. No. 108581, December 8, 1999

DIGESTED CASE: DOROTHEO vs. CA 320 SCRA 12

FACTS:

Private respondents were the legitimate children of Alejandro and Aniceta. Aniceta died in 1969 without her estate being settled. Alejandro died thereafter. Lourdes, claiming to have taken care of Alejandro before he died, filed a petition for probate of Alejandro‘s will. In1981, the will was admitted to probate but private respondents did not appeal from the said order. In 1983, upon motion of the private respondents, the trial court ruled that the will was intrinsically void and declared private respondents as the only heirs of the late spouses.

HELD:

Probate proceedings deal generally with the extrinsic validity of the will sought to be probated particularly on these aspects:

Whether the will submitted is indeed the decedent‘s last will and testament

Compliance with the prescribed formalities for the execution of wills

The testamentary capacity of the testator

And the due execution of the last will and testament

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution. The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. It does not necessarily follow that an extrinsically valid last will and testaments is always intrinsically valid.

___________

DIGESTED CASE#2: DOROTHEO vs. CA December 8, 1999

FACTS:

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Alejandro‘s will was admitted to probate in a petition filed by Lourdes. Nilda files a ―Motion to Declare the Will Intrinsically Void‖ after 2 years arguing that Lourdes was not the legal wife of the decedent. The order declaring the will intrinsically void was affirmed. Lourdes failed to file her appellant‘s brief. An entry of judgment was made. However, an order was issued by the probate judge setting aside the above order on the ground that it was merely interlocutory; hence, not final in character.

HELD:

A probated will cannot be given effect if it was later on declared intrinsically void. There is nothing to execute where the testamentary provisions have been declared void in an order that has become final and executory. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful provisions/dispositions thereof cannot be given effect. The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. A final judgment on probated will, albeit erroneous, is binding on the whole world. In setting aside the order declaring the will intrinsically void, the trial court nullified the entry of judgment made by the CA. A lower court cannot reverse or set aside decisions of a superior court.

______________________

DIGESTED CASE #3: Dorotheo v. CA 320 SCRA 12 | Tuazon

FACTS:

Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion to Declare the Will Intrinsically Void." The trial court granted the motion and issued an order. Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Later on, Judge Zain B. Angas set aside the final and executory Order, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character.

ISSUE:

May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect?

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HELD:

No. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world.

_____________________

SUPPLEMENTAL NOTES:

Dorotheo v. CA 320 SCRA 12 (1999)

Due execution of a will includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was

not acting under duress, fraud, menace or undue infl uence and that the will is genuine and not a forgery, that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will.

‘Probate’ Defined

Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity, as well as approval thereof by said court.

Probate is one thing; the validity of the testamentary provisions is another. The fi rst decides the execution of the document and the testamentary capacity of the testator; the second

deals with descent and distribution. (Sumilang v. Ramagosa, L-23135, Dec. 26, 1967).

Dorotheo v. CA 320 SCRA 12 (1999)

A fi nal judgment on probated will, albeit erroneous, is binding on the whole world.

Salient Points in Procedures of the Post-Mortem Probate

[NOTE: There are two (2) parts of Post-Mortem Probate:

I. The probate proper (this deals with EXTRINSIC VALIDITY)

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Dorotheo v. CA 320 SCRA 12 (1999)

Probate proceedings deals generally with the extrinsic validity of the will sought to be probated.

II. The inquiry into INTRINSIC VALIDITY and the DISTRIBUTION itself of the property.].

Purpose of the Legitime

(a) To protect the children and the surviving widow or widower from the unjustifi ed anger or thoughtlessness of the other spouse — this is the purpose of the legitime.

(b) If there are no compulsory heirs, it follows that there can be no legitime.

(c) Legitime may be received from two aspects: fi rst as a right; and second, as the property itself. This means that when a person refers to his legitime from his father, he

talks either of the right to succeed to a certain portion of the inheritance; or he may be referring to the actual property itself.

(d) The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specifi ed by law. Neither can he impose upon the same any burden, encumbrance,

condition, or substitution of any whatsoever (Art. 904), except, of course, the condition that the property will not be divided for a period not exceeding 20 years.

Dorotheo v. CA 320 SCRA 12 (1999)

Even if the will was validly executed if the testator provides for dispositions that deprive or impair the lawful heirs of their legitime or rightful inheritance according to

the laws on succession, the unlawful provisions/dispositions thereof cannot be given effect.

(e) Even if a testator does not want to make a compulsory heir an heir, he cannot do so, because this limitation is imposed upon him directly by the law. If he intentionally

or unintentionally omits to put them in his will or omits to grant them part of the property in the succession, his wish cannot prevail for the law provides that “the preterition or

omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul

the institution of heir, but the devises and legacies shall be valid insofar as they are not inoffi cious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.” (Art. 854). If he wants to disinherit any or all of his compulsory heirs, he may do so but this disinheritance

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should be for causes expressly stated by law, and effected only through a will wherein the legal cause therefor shall be specifi ed. As a consequence of this valid disinheritance, a compulsory heir may be deprived of his legitime. (Art. 915).

_______________________________________________________

Art. 962 - Relative nearest in degree excludes the more distant ones

ARTICLE 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines

Heirs of Pascasio Uriarte vs. Court of Appeals, G.R. No. 116775, January 22, 1998

(can’t find digest)

________________________________________

Ofelia Hernando Bagunu vs. Pastora Piedad, G.R. No. 140975, December 8, 2000

DIGESTED CASE: Bagunu v. Piedad (Li, Elizabeth)

Facts:

Augusto H. Piedad died without any direct descendants or ascendants. Petitioner Ofelia Hernando Bagunu is the daughter of a first cousin of the deceased, or a fifth-degree relative of the decedent; while, respondent is the maternal aunt of the decedent, a third-degree relative of the decedent. In this case, Petitioner, a fifth degree relative of the deceased moved to intervene in Special Proceedings of the Estate of Augusto H. Piedad as she seeks to inherit from the deceased. She assailed the finality of the order of the trial court awarding the entire estate to respondent Pastora Piedad, a third degree relative of the deceased. The trial court denied the motion. CA and SC affirmed.

Issues:

W/N petitioner, a collateral relative of the fifth civil degree, can inherit alongside respondent, a collateral relative of the third civil degree. W/N the rule of proximity in intestate succession find application among collateral relatives.

Held:

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The rule on proximity favors the relatives nearest in degree to the decedent and excludes the more distant ones except when and to the extent that the right of representation apply. Thus, Article 962 of the Civil Code provides that “In every inheritance, the relative nearest in degree excludes the more distant ones, saving

the right of representation when it properly takes place.” "Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines."

The right of representation does not apply to "other collateral relatives within the fifth civil degree" who are sixth in the order of preference as follows:

firstly, the legitimate children and descendants,

secondly, the legitimate parents and ascendants,

thirdly, the illegitimate children and descendants,

fourthly, the surviving spouse,

and fifthly, the brothers and sisters/nephews and nieces, of the decedent. Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in Article 962, , is an absolute rule.

Hence, Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad excludes petitioner, a relative of the fifth degree, from succeeding ab intestato to the estate of the decedent.

Among the other collateral relatives, no preference or distinction shall be observed "by reason of relationship by the whole blood." In fine, a maternal aunt can inherit alongside a paternal uncle, and a first cousin of the full blood can inherit equally with a first cousin of the half blood, but an uncle or an aunt, being a thirddegree relative, excludes the cousins of the decedent, being in the fourth-degree of relationship; the latter, in turn, would have priority in succession to a fifth-degree relative.

SUPPLEMENTAL NOTES:

COMMENT:

(1) Two Basic Principles of Intestate Succession

(a) Nearer relative excludes farther relative (without prejudice to the right of representation, because by virtue of representation the farther becomes just as near). The principle is without prejudice to preference to lines however.

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Ofelia Hernando Bagunu v. Pastora Piedad GR 140975, Dec. 8, 2000

The rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludes the more distant ones except when and to the extent that

the right of representation can apply. Among collateral relatives, except only in the case of

nephews and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in Art. 962, is an absolute rule.

(b) In general, inheritance is in equal shares. There are exceptions however.

(2) Principle of Nearer Excludes the Farther

Example: A man died without a will, leaving a brother and a cousin. Only the brother inherits because the nearer relative excludes the farther. If there are two brothers, they get equal shares.

(3) Question

D is survived intestate by a grandfather and a brother. Will both inherit?

ANS.:

Although it is true that both are just as near in degree, still it is the grandfather alone who should inherit because the direct line is preferred over the collateral line.

COMMENT:

Computation of Degrees

The Article illustrates how degrees of generation are computed. Stated otherwise, Art. 966 gives direction in the determination of the degree of relationship of the collateral relatives to the decedent. (Bagunu v. Piedad, GR 140975, Dec. 8, 2000).

The Case of Bagunu Bagunu v. Piedad

GR 140975, Dec. 8, 2000

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By right of representation, a more distant blood relative of a decedent is, by operation of law, raised to the same place and degree of relationship as that of a closer blood relative of the same decedent. The representative thereby steps into the shoes of the person he represents and succeeds, not from the latter, but from the person to whose estate the person representated would have succeeded.

The right of representation does NOT APPLY to “others — i.e., collateral relatives within the 5th civil degree’’ (to which group both petitioner and respondent belong) who are 6th in the

order of preference following: fi rstly, the legitimate children and descendants; secondly, the legitimate parents and ascendants; thirdly, the legitimate children and descendants; fourthly, the surviving spouse, and fi fthly, the brothers and sisters/nephews

and nieces, of the decedent. Among collateral relatives, except only in the case of nephews

and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in Art. 962, is an absolute rule. In determining the degree of relationships of the

collateral relatives to the decedent, Art. 966 gives direction.

(1) Succession Limited to the Fifth Degree

Another change in this section on the order of intestate succession in the interest of national economy and social welfare, and in keeping with the underlying philosophy of socialization

of ownership of property, is to limit the right of succession to the collateral relatives within the fi fth degree of relationship from the decedent instead of the sixth degree. (Comment of the Code Commission).

(2) Case

Ofelia Hernando Bagunu v. Pastora Piedad

GR 140975, Dec. 8, 2000

The law (Arts. 1009-1010) means only that among the other collateral relatives (the 6th in the line of succession), no preference or distinction shall be observed “by reason of relationship by the whole blood.’’

In fi ne, a maternal aunt can inherit equally with a fi rst cousin of the half blood but an uncle or an aunt, being a 3rd degree relative, excludes the cousins of the decedent, being in

the 4th degree of relationship, the latter, in turn, would have priority in succession to a 5th degree relative.

Art. 966, par. 3 - In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made.

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ARTICLE 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent.

Ofelia Hernando Bagunu vs. Pastora Piedad, G.R. No. 140975, December 8, 2000

(Refer the case above)

Art. 970 – Representation

ARTICLE 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

Isabel De La Puerta vs. Court of Appeals, G.R. No. 77867, February 6, 1990

(Can’t Find Digest)

Art. 979 - Legitimate children and their descendants succeed the parents and other ascendants

ARTICLE 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

Mauricio Sayson vs. Court of Appeals, G.R. Nos. 89224-25, January 23, 1992

Digested Case: SAYSON VS. CA

FACTS:

- Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa,Remedios and Teodoro.Eleno died on November 10, 1952, and Rafaela on May 15, 1976. Teodoro, who had married Isabel Bautista, died on March 23, 1972. His wife died nine years later, on March 26, 1981. Their properties were left in the possession of Delia (adopted),Edmundo (adopted), and Doribel (legitimate), all surnamed Sayson, who claim to be their children.

- First case is a complaint for partition and accounting of the intestate estate of Teodoro and Isabel Sayson instituted by the four siblings of Teodoro and mother of Isabel named Juana Bautista. The action was resisted by the 3 children who alleged successional rights. Second case is for the accounting and partition of the intestate estate of Eleno and Rafaela Sayson instituted by the 3 children claiming to inherit by reason of their right of representation of

their father Teodoro.

- RTC decided in favor of 3 children: In the 1st case, they may inherit because they are legitimate children (heirs). In the 2nd case, they may inherit through right of representation.

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- CA affirmed the 1st case but modified the 2nd case because only natural child not adopted child may inherit by right of representation. Contention of the Petitioners: Delia and Edmundo were not legally adopted because Doribel had already been born on February 27, 1967, when the decree of adoption was issued on March 9, 1967.

The birth of Doribel disqualified her parents from adopting. Basically, if the children are disqualified to be adopted, then they cannot become legitimate children; hence they cannot inherit.

Issue:

Can the adopted children inherent from (1) Teodoro and Isabel and (2) Eleno and Rafaela by right ofrepresentation of their father Teodoro?

HELD:

- Doribel, as the legitimate daughter of Teodoro and Isabel Sayson, and Delia and Edmundo, as their adopted children, are the exclusive heirs to the intestate estate of the deceased couple, conformably to the Article 979 of the Civil Code wherein “An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.”

- Meanwhile, regarding the right of representation, there is no question that as the legitimate daughter of Teodoro and thus the granddaughter of Eleno and Rafaela, Doribel 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 in the case of Delia and Edmundo, 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.

DIGESTED CASE 2: SAYSON v CA (SAYSON)

205 SCRA 321

CRUZ; January 23, 1992

NATURE

Petition for review by certiorari. At issue in this case is the status of the private

respondents and their capacity to inherit from their alleged parents and grandparents.

The petitioners deny them that right, asserting if for themselves to the exclusion of all

others.

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FACTS

- Eleno and Rafaela Sayson had 5 children: Mauricio, Rosario, Basiliso, Remedios and

Teodoro

- Teodoro married Isabel Bautista

- Teodoro and Isabela had 3 children: Delia, Edmundo and Doribel

- Eleno and Rafaela Sayson died, and so did Teodoro and Isabela.

- Delia, Edmundo and Doribel filed a complaint for the accounting and partition of the

estate of Eleno and Rafaela Sayson, against the couple’s 4 surviving children. They

asserted that Delia and Edmundo were the adopted children and Doribel was the

legitimate daughter of Teodoro and Isabel and that, as such, they were entitled to

inherit Teodor’s share in his parents’ estate by right of representation

- the lower court ruled in favor of Delia, Edmundo and Doribel, saying they were

entitled to inherit from Eleno and Rafaela by right of representation

ISSUE

WON Delia, Edmundo and Doribel have the right of representation, giving them the

right to represent their deceased father Teodoro in the distribution of the intestate

estate of their grandparents

HELD

1. YES and NO: Doribel is entitled to her father’s share of her grandparents’ estate

through her right of representation, but Delia and Edmundo are not so entitled.

Ratio Adopted children do not have the right of representation

Reasoning As the legitimate daughter of Teodoro and thus the granddaughter of

Eleno and Rafaela, Doribel has a right to represent her deceased father in the

distribution of the intestate estate of her grandparents. Under Article 981,

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Art. 981. Should children of the deceased and descendants of other children who

are dead, survive, the former shall inherit in their own right, and the latter by right

of representation.

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 in the case of Delia and Edmundo, 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.

Art. 982 - Grandchildren and other descendants inherit by right of representation

ARTICLE 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

Anselma Diaz vs. Intermediate Appellate Court, G.R. No. L-66574, February 21, 1990

DIGESTED CASE: DIAZ v IAC 183 SCRA 427

PARAS; February 21, 1990

NATURE

Second Motion for Reconsideration

FACTS

It is undisputed 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de

Santero who together with Felisa's mother Juliana were the only legitimate children of

the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin

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and out of their union were born Felisa Pamuti and another child who died during

infancy; 3) that Simona Pamuti Vda. de Santero is the widow of Pascual Santero and

the mother of Pablo Santero; 4) that Pablo Santero was the only legitimate son of his

parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual Santero

died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo

Santero, at the time of his death was survived by his mother Simona Santero and his

six minor natural children to wit: four minor children with Anselma Diaz and two minor

children with Felixberta Pacursa.

ISSUE

Who are the legal heirs of Simona Pamuti Vda. de Santero ? her niece Felisa Pamuti-

Jardin or her grandchildren (the natural children of Pablo Santero)? Could petitioners

as illegitimate children of Pablo Santero inherit from Simona Pamuti Vda. de Santero,

by right of representation of their father Pablo Santero who is a legitimate child of

Simona Pamuti Vda. de Santero?

HELD

Felisa Pamuti-Jardin is the legal heir of Simona.

Ratio The right of representation is not available to illegitimate descendants of

legitimate children in the inheritance of a legitimate grandparent. The determining

factor is the legitimacy or illegitimacy of the person to be represented. If the person to

be represented is an illegitimate child, then his descendants, whether legitimate or

illegitimate, may represent him; however, if the person to be represented is

legitimate, his illegitimate descendants cannot represent him because the law

provides that only his legitimate descendants may exercise the right of representation

by reason of the barrier imposed Article 992.

Reasoning:

a. "The rules laid down in Article 982 that 'grandchildren and other

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descendants shall inherit by right of representation and in Article 902 that the

rights of illegitimate children ... are transmitted upon their death to their

descendants, whether legitimate or illegitimate are subject to the limitation

prescribed by Article 992 to the end that an illegitimate child has no right to inherit

ab intestato from the legitimate children and relatives of his father or mother."'

(Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12) It may

not be amiss to state that Article 982 is the general rule and Article 992 the

exception.

b. The law recognizes that between the legitimate family and the illegitimate family

there is presumed to be antagonism and incompatibility.

c. It is clear from Article 992 of the New Civil Code that the phrase “legitimate

relatives of his father or mother” includes Simona Pamuti as the word “relative” is

broad enough to comprehend all the kindred of the person spoken of.

GUTIERREZ, JR., J., dissenting:

I agree that a clear and precise amendment is needed if collateral relatives such as

illegitimate children and legitimate uncles, aunts, or cousins or illegitimate siblings

and their legitimate half-brothers or half-sisters are to inherit from one another. But I

must stress that the barrier is between the legitimate and illegitimate families. I see

no reason why we should include a grandmother or grandfather among those where a

firm wall of separation should be maintained. She cannot be a separate "family" from

her own grandchildren.

The adoption of a harsh and absurd interpretation, pending an amendment of the

law, does not impress me as correct. Precisely, the word "relatives" in Art. 992 calls

for reinterpretation because the Code has been amended. The meaning of relatives

must follow the changes in various provisions upon which the word's effectivity is

dependent.

The law should be interpreted to accord with what appears right and just. Unless the

opposite is proved, I will always presume that a grandmother loves her grandchildren

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—legitimate or illegitimate. more than the second cousins of said grandchildren or the

parents of said cousins. The grandmother may be angry at the indiscretions of her son

but why should the law include the innocent grandchildren as objects of that anger.

"Relatives" can only refer to collateral relatives, to members of a separate group of

kins but not to one's own grandparents.

DIGESTED CASE 2: Diaz v. IAC 1990

Facts:

o Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who together with Felisa's mother Juliana were the only legitimate children of the spouses Felipe Pamuti and Petronila Asuncion.

o Juliana married Simon Jardin and out of their union were born Felisa Pamuti and another child who died during infancy;

o Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo Santero;

o Pablo Santero was the only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero;

o Pascual Santero died in 1970;

o Pablo Santero in 1973 and Simona Santero in 1976;

o Pablo Santero, at the time of his death was survived by his mother Simona Santero and his six minor natural children to wit: four minor children with Anselma Diaz and two minor children with Felixberta Pacursa.

o Judge Jose Raval: declared Felisa Pamuti Jardin as the sole legitimate heir of Simona Pamuti Vda. de Santero.

o Before the trial court, there were 4 interrelated cases filed to wit:

§ Sp. Proc. No. B-4 — is the Petition for the Letters of Administration of the intestate Estate of Pablo Santero;

§ Sp. Proc. No. B-5 — is the Petition for the Letters of Administration of the Intestate Estate of Pascual Santero;

§ Sp. Proc. No. B-7 — is the Petition for Guardianship over the properties of an Incompetent Person, Simona

Pamuti Vda. de Santero;

§ Sp. Proc. No. B-21 — is the Petition for Settlement of the Intestate Estate of Simona Pamuti Vda. de Santero.

o Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos. B-4 and B-5, was allowed to intervene in the intestate estates of Pablo Santero and Pascual Santero by Order of the Court dated August 24, 1977.

o Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition and Motion to Exclude Felisa Pamuti Jardin dated March 13, 1980, from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estate of Pascual Santero and Pablo Santero.

o Felixberta Pacursa guardian for her minor children, filed thru counsel, her Manifestation of March 14, 1980 adopting the Opposition and Motion to Exclude Felisa Pamuti, filed by Anselma Diaz.

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o On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estates of Pascual Santero and Pablo Santero and declared her to be, not an heir of the deceased Simona Pamuti Vda.

de Santero."

o IAC: petitioner as the sole heir of Simona Pamuti Vda. de Santero and ordering oppositors-appellees not to interfere in the proceeding for the declaration of heirship in the estate of Simona Pamuti Vda. de Santero.

Issue:

Who are the legal heirs of Simona Pamuti Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren (the natural children of Pablo Santero)?

HELD:

Since the heridatary conflict refers solely to the intestate estate of Simona Pamuti Vda. de Santero, who is the legitimate mother of Pablo Santero, the applicable law is the provision of Art. 992 of the Civil Code which reads as follows:

ART. 992. 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. (943a)

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the oppositors (petitioners herein) are the illegitimate children of Pablo Santero.

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. 6

Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the letter to the intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of the barrier provided for under Art. 992 of the New Civil Code.

It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and relatives of his father or mother" includes Simona Pamuti Vda. de Santero as the word "relative" includes all the kindred of the person spoken of. The record shows that from the commencement of this case the only parties who claimed to be the legitimate heirs of the

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late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero. Lastly, petitioners claim that the respondent Intermediate Appellate Court erred in ruling that the Orders of the Court a quo dated December 1, 1976 and December 9, 1976 are final and executory. Such contention is without merit. The

Hon. Judge Jose Raval in his order dated December 1, 1976 held that the oppositors (petitioners herein) are not entitled to intervene and hence not allowed to intervene in the proceedings for the declaration of the heirship in the intestate estate of Simona Pamuti Vda. de Santero.

Subsequently, Judge Jose Raval issued an order, dated December 9, 1976, which declared Felisa Pamuti-Jardin to be the sole legitimate heir of Simona Pamuti. The said Orders were never made the subjects of either a motion for reconsideration or a perfected appeal. Hence, said orders which long became final and executory are already removed from the power of jurisdiction of the lower court to decide anew. The only power retained by the lower court, after a judgment has become final and executory is to order its execution. The respondent Court did not err therefore in ruling that the Order of the Court a quo dated May 30, 1980 excluding Felisa Pamuti Jardin as intestate heir of the deceased Simona Pamuti Vda. de Santero "is clearly a total reversal of an Order which has become final and executory, hence null and void. "

DIGESTED CASE #3: Diaz v. IAC 182 SCRA 427 (1990)

- The illegitimate children of Pablo Santero filed a 2nd Motion for Reconsideration on the decision of the SC holding them disqualified from inheriting from the estate of Simona

Jardin. (same facts as above)

- Said grandchildren are now invoking Arts 902, 982, 989 and 990 of the New Civil Code to bolster their right to succeed.

Whether or not the illegitimate children of a legitimate child can inherit by right of representation from the children and relatives of such legitimate parent

- No.

- First, Articles 902, 989 and 990 clearly speaks of successional rights of illegitimate children, which rights are transmitted to their descendants upon death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be

legitimate or illegitimate.

- Second, although Art 982 provides that "the grandchildren and other descendants shall inherit by right of representation", the same is limited by Art 992 to the end

that an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother (who must be legitimate children themselves).

- Third, it is true that while the NCC granted successional rights to illegitimate children, those articles must however be read in conjunction with Art 992, which prohibits the right

of representation from being exercised where the person to be represented is a legitimate child. The determining factor therefore is the legitimacy or illegitimacy of the person to be

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"represented." It must be emphasized that illegitimate children have only those rights expressly garnted to them by law.

- Fourth, the term "relatives", in accordance with the rules of statutory construction, must be understood to have a general and inclusive scope inasmuch as the term is a general one. In fact, if the law wants to distinguish it expressly says so by adding qualifiers such as the word "collateral".

- From the aforementioned, SC affirmed its earlier decision that the illegitimate grandchildren are barred from inheriting ab intestato from Simona's estate..

- ART 992 prohibits absolutely a succession ab intestate between the illegitimate child and the legitimate children and relatives of the father or mother (who must be a legitimate child). (However note that descendants, whether legitimate or illegitimate, can inherit by right of representation if the person to be represented is an illegitimate child.)

Art. 985 - In default of legitimate children and descendants, parents and ascendants shall inherit from deceased

ARTICLE 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.

Jose Baritua vs. Court of Appeals, G.R. No. 82233, March 22, 1990

DIGESTED CASE: Baritua v. CA

- The tricycle being driven by Bienvenido Nacario met an accident with a bus, driven by Edgar Bitancor and owned and operated by Jose Baritua.

- The accident caused the death of Nacario.

- No civil or criminal case was filed against the driver andBaritua. Instead, an extra-judicial settlement was entered into between Nacario’s spouse Alicia Baracena and the

petitioners and the bus’ insurer (Philippine First Insurance Company).

- In that settlement, the spouse was given P18,500 and in consideration for what she received, the widow executed an affidavit of desistance in filing any case against the

petitioners.

- A year after, the parents of Nacario filed a complaint for damages against the petitioners alleging that the petitioners promised to indemnify for the death of their son, the funeral

expenses and the damages caused to the tricycle but instead the petitioners paid to the estranged wife.

- The CFI ruled in favor of Baritua and the driver but the CA reversed the decision upon appeal. Hence, this petition.

ISSUE:

Whether or Not CA erred in ruling that the petitioners are still liable to pay to the Nacarios’ parents

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HELD:

- SC held that this ruling is erroneous.

- The Court recognized that payment is one of the recognized modes in extinguishing obligations.

- According to Art 1240 of the CC, to effect extinguishment, payment must be made to the person to whom the obligation is made, to his successors-in-interest, or to anyone authorized.

- It is clear under Article 887 that a surviving spouse and the legitimate children are the compulsory heirs of a decedent.

- As such, the petitioners correctly paid Alicia and her son,who are the successors-in-interest of Nacario.

- On the other hand, the parents of the deceased succeed only when the latter dies without any legitimate descendants. Since Nacario and Alicia begot a son, the legitimate ascendants are excluded from succession.

- This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the

deceased spouse.

- Legitimate ascendants succeed only in default of legitimate descendants whereas a spouse is a concurring heir and succeeds together with all classes of heirs.

- Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.

SUPPLEMENTAL NOTES:

Baritua vs. CA

The deceased died while driving a tricycle which collided with a bus. The widow executed a release of claim and an affidavit of desistance discharging the owner of the bus from all actions/claims arising from the accident for a certain sum of money. The parents of the deceased thereafter filed a claim for damages against the bus owner. SC ruled that the widow and her son are the successors-in-interest authorized to receive payment. The parents shall only succeed when the decedent leaves no legitimate descendants. While the surviving spouse is a concurring compulsory heir.

A husband and a wife, although still legally married, have not been together for 7 years due to clear and undeniable marital problems. Upon the death of the husband, can the wife still claim her legitime to the estate as a surviving spouse (assuming without this issue,

she would have, without question, inherited as a compulsory heir)?

Yes, the wife can still claim her share to the estate as a surviving spouse. According to the case Baritua vs. Court of Appeals (183 SCRA 565 [1990]), mere estrangement is not a ground for the disqualification of the surviving spouse as heir.

Art. 990 - Right of representation of descendants of illegitimate children

Anselma Diaz vs. Intermediate Appellate Court, G.R. No. L-66574, June 17, 1987

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Art. 992 - Illegitimate child cannot inherit ab intestato from legitimate children and relatives of his father or mother and vice versa

Centeno vs. Centeno, 52 Phil 322

Isabel De La Puerta vs. Court of Appeals, G.R. No. 77867, February 6, 1990

Anselma Diaz vs. Intermediate Appellate Court, G.R. No. L-66574, February 21, 1990

Olivia S. Pascual vs. Esperanza C. Pascual-Bautista, G.R. No. 84240, March 25, 1992 " Blanquita E. Dela Merced vs. Joselito P. Dela Merced, G.R No. 126707, February

25, 1999

Anselma Diaz vs. Intermediate Appellate Court, G.R. No. L-66574, June 17, 1987

DIGESTED CASE: Diaz v. IAC 150 SCRA 645 (1987)

FACTS:

- Simona Jardin has a niece Felisa Jardin from her legitimate sister Juliana Jardin. At the same time, Simona also had a legitimate son, Pablo santero, who predeceased her. On

the other hand, Pablo Santero was survived by his acknowledged natural children.

- Simona Jardin died intestate with only her niece Felisa as the sole surviving heir. During the intestate proceedings of the estate of Simona, the illegitimate children of Pablo Santero intervened and contended that as the illegitimate children of the deceased Simona they have the right to succeed by representation.

- The grandchildren premised their rights to succeed under Art 990 of the NCC, which grants the right of representation to descendants whether legitimate or illegitimate. Hence, by said proviso, the grandchildren has the right to represent their deceased father in the estate of their grandmother. Who between Felisa Jardin and the Illegitimate grandchildren of Simona are to be considered the legal heirs of Simona Jardin.

- Felisa Jardin is the sole legal heir of the decedent.

HELD:

- The SC held that the grandchildren's reliance in Art 990 is misplaced and that the applicable law is Art 992. Art 990 is not applicable because Pablo Santero is a legitimate child of Simona while the oppositors are the former's illegitimate children. (Art 990 applies to the right of the descendants of an illegitimate child to inherit by representation.)

- Art 992 provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between theillegitimate child and the legitimate children and relatives of of the father or mother of said legitimate child. Between the legitimate and illegitimate family there is presumed to be an intervening antagonism and incompatibility.

- It is clear therefore from Art 992 of the NCC that the phrase "legitimate children and relatives of his father and mother" includes Simona Jardin. Hence, the illegitimate grandchilren are barred from asserting their right to succeed from Simona, who is a legitimate relative of their father.

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- ART 992 prohibits absolutely a succession ab intestate between the illegitimate child and the legitimate children and relatives of the father or mother (who must be a legitimate child). (However note that descendants, whether legitimate or illegitimate, can inherit by right of representation if the person to be represented is an illegitimate child.)

SUPPLEMENTAL NOTES:

Diaz, et al. v. IAC, et al.

L-66574, June 17, 1987 ( take note 1987)

Art. 992 of the Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestate 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 legitimate 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. Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the latter to the intestate estate of his legitimate mother Simona Pamut Vda. de Santero because of the barrier provided for under Art. 992 of the Civil Code.

DIAZ, et al vs. IAC, et al JUNE 17, 1987

HELD:

Article 992 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. Between the legitimate family and the illegitimate family, there is presumed to be an intervening antagonism and incompatibility.

Benigno Manuel vs. Nicodemo T. Ferrer, G.R. No. 117246, August 21, 1995

Art. 1001 - Sharing when widow or widower survives with brothers and sisters

Remedios G. Salvador vs. Court of Appeals, G.R. No. 109910, April 5, 1995 • Rodolfo Fernandez vs. Romeo Fernandez, G.R. No. 143256, August 28, 2001

Art. 1009 - Other collateral relatives

Ofelia Hernando Bagunu vs. Pastora Piedad, G.R. No. 140975, December 8, 2000

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Art. 1010 - Right to inherit ab intestato shall not extend beyond fifth degree of relationship in the collateral line

Ofelia Hernando Bagunu vs. Pastora Piedad, G.R. No. 140975, December 8, 2000 Art. 1012

City of Manila vs. Archbishop of Manila, 36 Phil 815

Art. 1017

Torres vs. Lopez, 49 Phil 504

Art. 1026

Resurreccion vs. Javier, 63 Phil 599 Art. 1027

Torres et al., vs. Lopez, 49 Phil 504

Art. 1051 - Repudiation of inheritance

Eloy Imperial vs. Court of Appeals, G.R. No. 112483, October 8, 1999

Art. 1061 - Collation

Rolando Sanchez vs. Court of Appeals, G.R. No. 108947, September 29, 1997

Lauro G. Vizconde vs. Court of Appeals, G.R. No. 118449, February 11, 1998

Florentino Zaragoza vs. Court of Appeals, G.R. No. 106401, September 29, 2000

Natividad P. Nazareno vs. Court of Appeals, G.R. No. 138842, October 18, 2000

Art. 1078 - Co-ownership before partition

Mauricia Alejandrino vs. Court of Appeals, G.R. No. 114151, September 17, 1998

Art. 1079 - Partition of estate

• Carlos Gabila vs. Pablo Perez, G.R. No. 29541, January 27, 1989

Art. 1080 - Partition inter vivos or by will to be respected without prejudice to legitime of compulsory heirs

Raquel Chavez vs. Intermediate Appellate Court, G.R. No. 68282, November 8, 1990

Art. 1082 - Act intended to end indivision among co-heirs and legatees or devisees deemed to be a partition

" Carlos Gabila vs. Pablo Perez, G.R. No. 29541, January 27, 1989

Gregorio Favor vs. Court of Appeals, G.R. No. 80821, February 21, 1991

Rolando Sanchez vs. Court of Appeals, G.R. No. 108947, September 29, 1997

Art. 1088 - Subrogation of co-heirs

Francisco Garcia vs. Jose Calaliman, G.R. No. 26855, April 17, 1989

Leonardo Mariano vs. Court of Appeals, G.R. No. 101522, May 28, 1993

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Clarita P. Hermoso vs. Court of Appeals, G.R. No. 108580, December 29, 1998

Art. 1100 - Prescription of action for rescission

Samson vs. Araneta, 60 Phil. 27, 36

Natividad Del Rosario Vda. De Alberto vs. Court of Appeals, G.R. No. 29759, May 18,1989

Art. 1104 - Partition with pretention of compulsory heir

Aznar Brothers Realty Company vs. Court of Appeals, G.R. No. 128102, March 7, 2000

Art. 1105 - Partition which includes person who is not an heir

Maria Landayan vs. Angel Bacani, G.R. No. L-30455, September 30, 1982