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17 SCRA 449

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.

ISSUE: WON the institution of one of the sister of the deceased as the sole, universal
heir preterited the compulsory heirs.

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 testators 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.


G.R. No. L-39247 June 27, 1975

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in
Davao City at the age of 67. She was survived by her husband, Felix Balanay, Sr.,
and 6 legitimate children: Felix Balanay, Jr., Avelina B. Antonio, Beatriz B.
Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon
Felix J. Balanay, Jr. filed in the lower court for the probate of his mother's notarial
will dated September 5, 1970 which is written in English where Leodegaria Julian
declared (a) she was the owner of the "southern half of 9 conjugal lots (b) she was
the absolute owner of 2 parcels of land which she inherited from her father (c) it
was her desire that her properties should NOT be divided among her heirs during
her husband's lifetime and that their legitimes should be satisfied out of the fruits
of her properties (d) after her husband's death (age of 82 in 1973) her paraphernal
lands and all the conjugal lands should be divided and distributed in the manner
set forth in that part of her will. She devised and partitioned the conjugal lands as
if they were all owned by her.
Although initially opposing, Felix Balanay, Sr. signed a Conformation of Division
and Renunciation of Hereditary Rights manifesting that out of respect for his
wife's will he waived and renounced his hereditary rights in her estate in favor of
their 6 children. In that same instrument he confirmed the agreement, which he
and his wife had perfected before her death, that their conjugal properties would
be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
conformation" of Felix Balanay, Sr. were void for illegally claiming the conjugal
David O. Montaa, Sr., claiming to be the lawyer of Felix Balanay, Jr., Beatriz B.
Solamo, Carolina B. Manguiob and Emilia B. Pabaonon filed a motion for leave
of court to withdraw probate of the will and requesting authority to proceed by
intestate estate proceeding also referring to the provisions relating to the conjugal
assets as compromising the future legitimes
Lower Court: Will was void and converted to intestate proceedings
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, asked for the
reconsideration of the lower court's order on the ground that Atty. Montaa had
NO authority to withdraw the petition for the allowance of the will

ISSUE: W/N the will should be void and interstate proceeding should follow

Illegal declaration does NOT nullify the entire will and may be disregarded
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half
share of the conjugal partnership but insofar as it partakes of a donation, it should
be subject to the limitations prescribed in articles 750 and 752 of the Civil Code.
A portion of the estate should be adjudicated to the widower for his support and
maintenance. Or at least his legitime should be respected.
The will is intrinsically valid and the partition therein may be given effect if it
does not prejudice the creditors and impair the legitimes. The distribution and
partition would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children and the
surviving spouse.
The preterition of surviving spouse did not produce intestacy. Moreover, he
signified his conformity to his wife's will and renounced his hereditary rights.

GR 72706OCTOBER 27, 1987


Constantitno filed for probate of the will of his decased brother Nemesio. The
spouse and adopted child of the decedentopposed the probate of will because of
RTC dismissed the petition of the wife. CA reversed and the probatethus was

ISSUE: Whether or not there was preterition of compulsory heirs in the direct line
thus their omission shall not annul the institution of heirs.


Preterition consists in the omission of the forced heirs because they are not
mentioned there in, or trough mentioned they are neither instituted as heirs nor
are expressly disinherited. As for the widow there is no preterit ion because
she is not in the direct line. However, the same cannot be said for the adopted
child whose legal adoption has not been questioned by the petitioner.
Adoption gives to the adopted person the same rights and duties as if he where
a legitimate child of the adopter and makes the adopted person a legal heir
hence, this is a clear case of preterition.

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
was written. No legacies and devisees 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

G.R. No. L-57848; June 19, 1982

Clemencia Aseneta, 81, single, died at Manila Sanitarium. She left a holographic
will. Pertinent provisions state and reveal that:

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay
and Legaspi City and all my personal properties shall be inherited upon my death by
Dra. Soledad L. Maninang with whose family I have lived continuously for around the
last 30 years now. Dra. Maninang and her husband Pamping have been kind to me. ... I
have found peace and happiness with them even during the time when my sisters were
still alive and especially now when I am now being troubled by my nephew Bernardo and
niece Salvacion. I am not incompetent as Nonoy would like me to appear. I know what is
right and wrong. I can decide for myself. I do not consider Nonoy as my adopted son. He
has made me do things against my will.

On June 9, 1977: Soledad filed a Petition for probate of the Will (testate case) with
CFI, QC (Sp.PN. Q-23304)
Bernardo Aseneta, who, as the adopted son, claims to be the sole heir of decedent
Clemencia Aseneta. Bernardo instituted intestate proceedings (intestate case) and
Motion to Dismiss the Testate Case on the ground that the holographic will was null
and void because: (1) He is the only compulsory heir; (2) He was preterited and,
therefore, intestacy should ensue.
Soledad, in her Opposition to said Motion to Dismiss, averred:
RULE = in a case for 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;

Respondent Bernardo was effectively disinherited by the decedent. RTC QC
dismissed Testate Case for reasons stated in the motion to dismiss filed by Bernardo.
MR denied for lack of merit; appointed Bernardo as the administrator of the intestate
RTC QC: Bernardo as a forced heir while Soledad is not; it found former as fit to
perform the duties of the trust. "
Spouses Maninang filed for certiorari at CA.

ISSUE: Whether the Court of Appeals acted in excess of its jurisdiction when it
dismissed the Testate Case

YES. It is a general rule that the probate of a Will is mandatory

Art. 838 CC: No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. 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.

Normally, the probate of a Will does not look into its intrinsic validity.
Opposition to the intrinsic validity or legality of the provisions of the will cannot
be entertained in Probate proceeding because its only purpose is merely to
determine if the will has been executed in accordance with the requirements of the

... The authentication of a will decides no other question than such as touch upon
the capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency (sic) of the provisions, these may be impugned as being
vicious or null, notwithstanding its authentication. The que0stions relating to these points
remain entirely unaffected, and may be raised even after the will has been authenticated

Although in the cited case of Nuguid, in the Balanay case, that the Court decided
on the intrinsic validity of the Will even before the probate , these cases merely
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.(Meaning, exception in NUGUID case, not applicable in this case.)
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, BARNARDO 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.

G.R. No. L-23079, February 27, 1970

Basilia Austria executed a will wherein the bulk of her estate was given to the
r es pondent s , al l have been decl ar ed by t he f or mer as her l egal l
y adopt edchildren.
During her lifetime, Basilia filed a petition for the probate of her will.
It wasopposed by the petitioners who are the nephews and nieces. The opposition
was dismissed and the will was allowed.
In 1954, the petitioners filed a petition for intervention for partition alleging that
they were the nearest kin of Basilia and that the respondent had not been in fact
adopted by the decedent in accordance with law, hence the latter were strangers
with no right to succeed as heirs.
The lower court held that the validity or invalidity is not material to the
institution of heirs. It held that the testator was possessed of testamentary capacity
and her last will was executed free from falsification, fraud, trickery or undue

Issue: Whether or not the institution of the heir is valid

Yes. The general rule is that the falsity of the stated cause for the testamentary
institution does not affect the validity or efficacy of the institution. An
exception to the rule is that the falsity will set aide the institution if
certain factors are present. Before the institution of the heirs will be annulled
under Art.850 the following requisites must concur;

1) the cause must be stated in the will,
2) the cause is shown to be false, and
3) it must appear from the face of the will that the testator would not have made such
institution if he had known the falsity.

Moreover, testacy is favored and doubts are resolved on its side especially when
the will shows a clear intention on the part of the testator to dispose of practically his whole
estate as in this case.


G.R. No. L-34395 May 19, 1981

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila]
on June 17, 1933. He was survived by his widow, Filomena Races, and their
seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and
three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were
partitioned in three equal portions by his daughters, Consuelo and Rita, and the
heirs of his deceased son Benito Legarda y De la Paz who were represented by
Benito F. Legarda.
Filomena Legarda y Races died intestate and without issue on March 19, 1943.
Her sole heiress was her mother, Filomena Races Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially
to herself the properties which she inherited from her deceased daughter,
Filomena Legarda.
Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents
wherein she disposed of the properties, which she inherited from her daughter, in
favor of the children of her sons, Benito, Alejandro and Jose (sixteen
grandchildren in all).
Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a
holographic will in the order dated July 16, 1968 of the Court of First Instance of
Manila in Special Proceeding No. 70878, Testate Estate of Filomena Races Vda.
de Legarda. The decree of probate was affirmed by the Court of Appeals
in Legarda vs. Gonzales, CA-G.R. No. 43480-R, July 30,1976.
In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix,
filed on May 20, 1968 a motion to exclude from the inventory of her mother's
estate the properties which she inherited from her deceased daughter, Filomena,
on the ground that said properties are reservable properties which should be
inherited by Filomena Legarda's three sisters and three brothers and not by the
children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was
opposed by the administrator, Benito F. Legarda.
The lower court dismissed the action of Mrs. Gonzales.

1.) Whether the disputed properties are reservable properties under article 891 of the
Civil Code, formerly article 811
2.) Whether Filomena Races Vda. de Legarda could dispose of them in his will in favor
of her grandchildren to the exclusion of her six children.

In the instant case, the properties in question were indubitably reservable
properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The
reservation became a certainty when at the time of her death the reservees or
relatives within the third degree of the prepositus Filomena Legarda were
living or they survived Mrs. Legarda.

In reserve troncal (1) a descendant inherited or acquired by gratuitous title
property from an ascendant or from a brother or sister; (2) the same property
is inherited by another ascendant or is acquired by him by operation of law
from the said descendant, and (3) the said ascendant should reserve the said
property for the benefit of relatives who are within the third degree from the
deceased descendant (prepositus) and who belong to the line from which the
said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the
deceased descendant; (2) a posterior transmission, by operation of law
(intestate succession or legitime) from the deceased descendant (causante de
la reserve) in favor of another ascendant, the reservor or reservista, which two
transmissions precede the reservation, and (3) a third transmissions of the
same property (in consequence of the reservation) from the reservor to the

If there are only two transmissions there is no reserve. Thus, where one
Bonifacia Lacerna died and her properties were inherited by her son, Juan
Marbebe, upon the death of Juan, those lands should be inherited by his half-
sister, to the exclusion of his maternal first cousins. The said lands are not
reservable property within the meaning of article 811 (Lacerna vs. Vda. de
Corcino, l l l Phil. 872).

We hold that Mrs. Legarda could not convey in her holographic will to her
sixteen grandchildren the reservable properties which she had inherited from
her daughter Filomena because the reservable properties did not form part of
her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot
make a disposition mortis causa of the reservable properties as long as the
reservees survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the
reservable properties from theprepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties should be inherited by
all the nearest relatives within the third degree from the prepositus who in this
case are the six children of Mrs. Legarda. She could not select the reservees to
whom the reservable property should be given and deprive the other reservees of
their share therein.
To allow the reservor in this case to make a testamentary disposition of the
reservable properties in favor of the reservees in the third degree and,
consequently, to ignore the reservees in the second degree would be a glaring
violation of article 891. That testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the doctrine of Florentino vs.
Florentino, 40 Phil. 480, a similar case, where it was ruled:
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 (reserves).

WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby
adjudged that the properties inherited by Filomena Roces Vda. de Legarda from
her daughter Filomena Legarda, with all the fruits and accessions thereof, are
reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro
and Jose, all surnamed Legarda y Roces, as reservees.

The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and
1973, respectively, should pertain to their respective heirs.



G.R. No. 4445 September 18, 1909

This is an appeal from an order of the Court of First Instance of Oriental Negros,
admitting to probate a document purporting to be the last will and testament of Domingo
Ubag, deceased. The instrument was propounded by his widow, Catalina Bugnao, the
sole beneficiary thereunder, and probate was contested by the appellants, who are
brothers and sisters of the deceased, and who would be entitled to share in the distribution
of his estate, if probate were denied, as it appears that the deceased left no heirs in the
direct ascending or descending line.
Appellants contend that the evidence of record is not sufficient to establish the execution
of the alleged will in the manner and form prescribed in section 618 of theCode of Civil
Procedure ; and that at the time when it is alleged that the will was executed, Ubag was
not of sound mind and memory, and was physically and mentally incapable of making a

The instrument propounded for probate purports to be the last will and testament of
Domingo Ubag, signed by him in the presence of three subscribing and attesting
witnesses, and appears upon its face to have been duly executed in accordance with the
provisions of the Code of Civil Procedure touching the making of wills.


Whether or not the will was made in strict conformity with the requisites
prescribed by law


The evidence of record establishes in a strikingly conclusive manner the execution of the
instrument propounded as the last will and testament of the deceased; that it was made in
strict conformity with the requisites prescribed by law; and that, at the time of its
execution, the deceased was of sound mind and memory, and executed the instrument of
his own free will and accord. Testamentary capacity is the capacity to comprehend the
nature of the transaction which the testator is engaged at the time, to recollect the
property to be disposed of and the person who would naturally be supposed to have
claims upon the testator, and to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.


22 PHIL 227

This is an appeal from an order of the Court of First Instance of the Province of
Bataan, admitting to probate a document which was offered as the last will and
testament of Pioquinto Paguio y Pizarro.

The will purports to have been executed in the pueblo of Pilar, Province of
Bataan, on the 19th day of April, 1908. The testator died on the 28th of
September, 1909, a year and five months following the date of the execution of
the will. The will was propounded by the executrix, Juliana Bagtas, widow of the
decedent, and the opponents are a son and several grandchildren by a former
marriage, the latter being the children of a deceased daughter.

The basis of the opposition to the probation of the will is that the same was not
executed according to the formalities and requirements of the law touching wills,
and further that the testator was not in the full of enjoyment and use of his mental
faculties and was without the mental capacity necessary to execute a valid will.

Pioquinto Paguio, for some fourteen of fifteen years prior to the time of his death
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. He
retained the use of his right hand, however, and was able to write fairly well.
Through the medium of signs he was able to indicate his wishes to his wife and to
other members of his family.

ISSUE: Whether or not the will was validly executed by the testator.


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 a court of competent jurisdiction, this presumption continues, and it is
therefore incumbent upon the opponents to overcome this legal presumption by
proper evidence. 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 right to dispose of property by testamentary disposition is as sacred as any
other right which a person may exercise and this right should not be nullified
unless mental incapacity is established in a positive and conclusive manner.
Contrary to the very prevalent lay impression, perfect soundness of mind is not
essential to testamentary capacity. A testator may be afflicted with a variety of
mental weaknesses, disorders, or peculiarities and still be capable in law of
executing a valid will. At the time of the execution of the will it does not appear
that his conduct was irrational in any particular. He seems to have comprehended
clearly what the nature of the business was in which he was engaged. The
evidence show that the writing and execution of the will occupied a period several
hours and that the testator was present during all this time, taking an active part in
all the proceedings. Again, the will in the case at bar is perfectly reasonable and
its dispositions are those of a rational person.



December 5, 1913, G.R. No. 6650


This appeal was raised by counsel for Santiago Galvez from the judgment of
October 25, 1910, whereby the Honorable Simplicio del Rosario, judge, denied
the petition presented by the said Galvez for the probate of the will, Exhibit B,
and appointed as administratrix of the testator's estate, the latter's only legitimate
daughter, Canuta Galvez.

Counsel for Santiago Galvez petitioned the Court of First Intance of Bulacan for
the probate of the will which it was alleged Victor Galvez executed in the dialect
of the province, on August 12, 1910, in presence of the witnesses Juan Dimanlig,
J. Leoquinco, and Nazaria Galvez. This instrument appears also to have been
signed by the witness Lorenzo Galvez, below the name and surname of the

Further on in the same record, pages 6 to 7, there appears another will written in
Tagalog and executed on the same date by Victor Galvez in presence of the
witnesses Cirilo Paguia, Florentino Sison, and Juan Menodoza.
After due trial the judgment aforementioned was rendered, from which an appeal
was entered by counsel for the petitioner, Santiago Galvez.

This case deals with the probate of the second will executed by Victor Galvez on
August 12, 1910, and signed in his presence by the witness Juan Dimanlig,
Nazaria Galvez and J. Leoquinco, and, as the testator was no longer able to sign
on account of his sickness, Lorenzo Galvez, at his request, affixed his own
signature to the instrument, for him and below his written name. This will, written
in Tagalog and translated into Spanish, is marked as Exhibit B and is found on
pages 3 and 5 of the bill of exceptions.

The other will, written in Tagalog and marked Exhibit A, was presented during
the proceedings; it was the first one the testator executed on the same date, and,
for the purpose of correcting an error contained in this first will, he executed
another will, the second, which is the one exhibited for probate.

Canuta Galvez, the testator's daughter, expressed her opposition alleging that her
father, owing to his very serious sickness with cholera, lacked the intellectual
capacity and clear judgment requisite for making a will.

ISSUE: Whether or not Victor Galvez, in executing his will, did so with a sound mind
and the full use of his mental faculties so that the will must be admitted to probate.


The attestation of the subscribing witnesses, the contents of the will and the
testator's positive determination to rectify the error he incurred in the execution of
his first will, show that Victor Galvez was in his sound mind and was perfectly
aware of his duties in respect to the legal, inviolable rights of his daughter and
sole heir, Canuta Galvez.

Inasmuch as, in the drafting and execution of the second will (Exhibit B), signed
in the name of the testator by Lorenzo Galvez and the witnesses Juan Dimanlig,
Nazaria Galvez, and J. Leoquinco, the formalities prescribed by section 618 of the
Code of Civil Procedure were observed, for the testator's name appears written at
the foot of the will and under this name Lorenzo Galvez signed by direction of the
testator himself, and the instrument was also signed by the attesting witnesses
before mentioned who affirmed that they heard and attested the dispositions made
by the testator and witnessed the reading of the will, that they were present when
the said Lorenzo Galvez signed the will in the name of the testator and that they
signed it in the presence of all the persons assembled in the latter's house, the
conclusion is inevitable that Victor Galvez, in executing his will, did so with a
sound mind and the full use of his mental faculties; therefore, the will must be
admitted to probate.

For the foregoing reasons, with a reversal of the judgment appealed from in so far
as it denies the probate of the said will, we hereby hold that the same was duly
executed by Victor Galvez and expresses his last wishes, and we affirm the rest of
the said judgment, with respect to the appointment, as administratrix, of Canuta
Galvez, the testator's daughter and sole heir.


G.R. No. L-30289; March 26, 1929

On November 23, 1920, Severina Gonzales executed a will in which Serapia de
Gala, a niece of Severina, was designated executrix. The testatrix died in
November, 1926, leaving no heirs by force of law, and on December 2, 1926,
Serapia, through her counsel, presented the will for probate. Apolinario Gonzales,
a nephew of the deceased, filed an opposition to the will on the ground that it had
not been executed in conformity with the provisions of section 618 of the Code of
Civil Procedure. On April 2, 1927, Serapia de Gala was appointed special
administratrix of the estate of the deceased. She returned an inventory of the
estate on March 31, 1927, and made several demands upon Sinforoso Ona, the
surviving husband of the deceased, for the delivery to her of the property
inventoried and of which he was in possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to
deliver to Serapia de Gala all the property left by the deceased. Instead of
delivering the property as ordered, Sinforoso filed a motion asking the
appointment of Serapia de Gala as special administratrix be cancelled and that he,
Sinforoso, be appointed in her stead. The motion was opposed by both Apolinario
Gonzales and by Serapia de Gala, but on March 3, 1928, it was nevertheless
granted, Serapia was removed, and Sinforoso was appointed special administrator
in her place, principally on the ground that he had possession of the property in
question and that his appointment would simplify the proceedings.

In the meantime and after various continuances and delays, the court below in an
order dated January 20, 1928, declared the will valid and admitted it to probate.
All of the parties appealed, Serapia de Gala from the order removing her from the
office of special administratrix, and Apolinario Gonzales and Sinforoso Ona from
the order probating the will.
ISSUE: Whether or not the will is invalid based on the principal points raised in the
appeal which are as follows:
(1) that the person requested to sign the name of the testatrix signed only the latter's
name and not her own;
(2) that the attestation clause does not mention the placing of the thumb-mark of the
testatrix in the will; and
(3) that the fact that the will had been signed in the presence of the witnesses was not
stated in the attestation clause but only in the last paragraph of the body of the will.
HELD: The will is valid.

1.) The testatrix in this case placed her thumb-mark on the will in the proper places.
When, therefore, the law says that the will shall be 'signed' by the testator or
testatrix, the law is fulfilled not only by the customary written signature but by the
testator or testatrix' thumb-mark. The construction put upon the word 'signed' by
most courts is the original meaning of a signum or sign, rather than the derivative
meaning of a sign manual or handwriting. A statute requiring a will to be 'signed'
is satisfied if the signature is made by the testator's mark.

2.) As will be seen, it is not mentioned in the attestation clause that the testatrix
signed by thumb-mark, but it does there appear that the signature was affixed in
the presence of the witnesses, and the form of the signature is sufficiently
described and explained in the last clause of the body of the will. It maybe
conceded that the attestation clause is not artistically drawn and that, standing
alone, it does not quite meet the requirements of the statute, but taken in
connection with the last clause of the body of the will, it is fairly clear and
sufficiently carries out the legislative intent; it leaves no possible doubt as to the
authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the
fact that the will had been signed in the presence of the witnesses was not stated
in the attestation clause is without merit; the fact is expressly stated in that clause.
In our opinion, the will is valid, and the orders appealed from are hereby affirmed


December 20, 1930, G.R. No. 33365

The will of the deceased Paulino Diancin was denied probate in the Court of First
Instance of Iloilo on the sole ground that the thumbmarks appearing thereon were
not the thumbmarks of the testator. Disregarding the other errors assigned by the
proponent of the will, we would direct attention to the third error which
challenges squarely the correctness of this finding.

The will in question is alleged to have been executed by Paulino Diancin at
Dumangas, Iloilo, on November 13, 1927. A thumbmark appears at the end of the
will and on the left hand margin of each of its pages in the following manner:
"Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were
the same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is
detailed in nature, and disposes of an estate amounting approximately to P50,000.

For comparative purposes, Exhibit 8, a document of sale containing an admittedly
genuine thumbmark of Paulino Diancin, was presented. Photographs of the
thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in
evidence. One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter
gave as his opinion that the thumbmarks had not been made by the same person
.One, Jose G. Villanueva, likewise attempted to qualify as were authentic.

1.) Whether or not the document presented for probate as the last will of the
deceased Paulino Diancin was, in truth, his will, and that the thumbmarks appearing
thereon were the thumbmarks of the testator. Yes!

2.) Whether or not the will of Diancin should be admitted to probate. Yes!


The three instrumental witnesses united in testifying concerning the
circumstances surrounding the execution of the will. It was stated that in addition
to the testator and themselves, on other person, Diosdado Dominado, was present.
This latter individual was called as a witness by the oppositors to the will to
identify Exhibit 8. He was later placed on the witness stand by the proponent on
rebuttal, and thereupon declared positively that he was the one who prepared the
will for the signature of Paulino Diancin; that the thumbmarks appearing on the
will were those of Paulino Diancin, and that he saw Paulino Diancin make these
impressions. The testimony of a witness called by both parties is worthy of credit.
We reach the very definite conclusion that the document presented for probate as
the last will of the deceased Paulino Diancin was, in truth, his will, and that the
thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly,
error is found, which means that the judgment appealed from must be, as it is
hereby, reversed, and the will ordered admitted to probate, without special finding
as to costs in this instance.