WILLS AND SUCCESSION WEEK 7

I.
INSTITUTION OF HEIRS
ART. 840 856 IN RELATION TO ART. 785 789
Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his
property and transmissible rights and obligations. (n)
Balane: The rules on institution of heir also apply to devisees and legatees.
Jurado: Concept of Institution of Heirs. The definition of institution of heir which is found in Art. 840 of the Code is a literal translation of
Manresas definition. According to the eminent commentator La institucion de heredero es al acto en virtud del cual el estador designa la persona o
personas que han de sucederle en sus derechos, acciones y obligaciones.
The fundamental basis of the law of testamentary succession is the doctrine that the will of the testator, freely expressed in his last will and
testament, is, as a general rule, the supreme law which governs the succession.
Undoubtedly, in order that such will shall have any effect, it must be manifested in a manner which is clear and precise.
Consequently, all legislations have always imposed upon the testator the duty to designate his heirs in such a manner as to leave no doubt with regard
to his intent.
Art. 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)
1.

Even if there is no institution of an heir, the will is valid, but it is useless unless it acknowledges an illegitimate child or disinherits a compulsory heir
or appoints an executor.

2.

If the institution does not cover the entire estate, the excess shall either go to the compulsory heirs or by intestacy. (Mixed succession.)

3.

How much can the testator dispose of from his estate? He can dispose all, except when there are compulsory heirs. In such a case, he can only
dispose of the free portion.

4.

General rule: If the will does not institute an heir, it need not be probated.
Exception: Even if it does not institute an heir, if any of the following are present:

5.

a.

When the will recognizes an illegitimate child;

b.

When it disinherits a compulsory heir;

c.

When it instituted an executor.

If the instituted heir should repudiate or be incapacitated to inherit, then legal succession takes place.

Jurado: The same is true in case of a partial institution or in case of a vacancy in the inheritance due to repudiation or incapacity. The effect in all
of these cases is that the testamentary dispositions which are made in accordance with law shall be complied, while the remainder shall pass to the
legal heirs in accordance with the law of intestate succession. In other words, there is what is known as mixed succession.
Art. 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)
X -------- spouse
/ |

A B C
X has a spouse and 3 children.
Children get 1/2 of the estate\ ------- Legitimes
Spouse gets 1/6 of the estate.
Freedom of Disposition. Art. 842 of the Code is a general provision which defines or delineates the testators freedom of disposition depending
upon whether or not he has compulsory heirs.
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, the Supreme Court declared:
The liberty to dispose of ones 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 to say that the exercise of the liberty thereby granted is necessarily exceptional, where it is not
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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 testators estate known as the legitime which is reserved by operation of law for the benefit of certain heirs
who are therefore called compulsory heirs, 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 onehalf of the entire estate, which 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. 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 specified 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, 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.
Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall
indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to
who has been instituted, the institution shall be valid. (772)
Balane: General rule: An heir must be designated by name and surname. This also applies to devisees and legatees.
If there are 2 or more people having the same name and surname, the testator must indicate some identifying mark or circumstance to which he may be
known, otherwise there may be a latent ambiguity.
E.g., I institute my cousin A. But I have 3 cousins by the name of A. Unless I give an identifying mark or circumstance as to w/c cousin A I refer to, there
will be a latent ambiguity.
Exception: Even w/o giving the name, the identity of the heir can be ascertained w/ sufficient certainty or clarity, e.g. the present Dean of the UP
College of Law, my oldest brother.
What is important is that the identity of the heir be known and not necessarily his name.
Art. 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 the
other proof, the person instituted cannot be identified; none of them shall be an heir. (773a)
Balane: 1. Paragraph 1. -- Even though there may be an error in the name of the heir, the error is immaterial if his identity can be known in any other
manner.
2. Paragraph 2. -- See the rules on latent ambiguity.
First: Use extrinsic evidence except the oral declarations of the testator as to his intentions to cure the ambiguity.
Second: If ambiguity still exists, none of them will inherit.
Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain.
However, a disposition in favor of a definite class or group of persons shall be valid. (750a)
Balane: 1. Can the testator give his entire free portion to a person he does not personally know? Yes.
The "unknown person" referred to in this article refers to one who cannot be identified and not to one whom the testator does not personally know. The
basis of the nullity is the inability to determine the intention of the testator.
E.g.,

"To someone who cares?" -- Void.

"To someone w/ ten eyes." -- Void, this refers to someone who does not exist.

This designation is valid if the identity is not known at the time of making the will but can be known in the future by circumstances.
establishing certain criteria at the proper time, e.g., First Filipino who wins a gold medal in the Olympics.

2. Class designation is valid, class in Civil Law Review, UP College of Law, 1995-1996.
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How? By

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Mass institution: see Articles 786, 848 (brothers and sisters), 849 (designation of a person and his children), 959 (relatives), 1029 (prayers and pious
works for the benefit of his soul), and 1030 (poor).
Form of Institution. The reason for the precept contained in the first paragraph of Art. 843 can easily be inferred from the fact that, under Art. 845 of
the Code, dispositions in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. Therefore, in
order to avoid such nullity, the law recommends that the designation should be made in the form indicated in the first paragraph of Art. 843. This form,
however, is not mandatory. The designation may be made in any other form, so long as there will be no doubt as to the identity of the heir or heirs
instituted.
Validity of Institution. The provisions of Arts. 843 and 844 should be applied in relation to the provision of Art. 789 of the Code. According to the
latter article, when there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be
corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testators intention is to be ascertained from
the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations.
From these provisions [Art. 789 of the Code] it is clear that the proper test in order to determine the validity of an institution of heir is the possibility of
finally ascertaining the identity of the instituted heir either by intrinsic or extrinsic evidence.
This test is especially applicable to the following cases:
(1) If the name and surname of the instituted heir has been omitted by the testator;
(2) If there has been an error with respect to the name, surname, or circumstances of the instituted heirs;
(3) If the name, surname, and circumstances of the instituted heir are the same as those of other persons; and
(4) If an unknown or uncertain person has been instituted.
Dispositions in favor of unknown persons. Although there is a difference in terminology between Art. 845 and the preceding article (Arts. 843 and
844) in the sense that, while the first refers to testamentary dispositions in general, the others refer merely to institutions of heirs; there is really no
logical reason why any distinction should be made with respect to their scope or applicability. It is evident that the rules or precepts which are contained
in all of these articles are applicable to designations of devisees and legatees as well as to institutions of heirs.
An unknown person (persona incierta) is one who is not determined or individualized and, therefore, cannot be identified.
According to Art. 845, a disposition in favor of such person (persona incierta) shall be void, unless by some event or circumstance his identity becomes
certain. The article, therefore, states not only the general rule, but also the exception. Thus, if the testator institutes as his heirs a group of veterans or
some members of the bar or lovers of art it is evident that the institution shall be void, since there would be no possibility of ascertaining the
identity of the instituted heirs.
But if he institutes as his heir the person who saved his life during the last battle at Corregidor, or if he devises a certain house and lot to the present
chief or head of a certain labor movement in Manila, or if he bequeaths his law library to the bar candidate who will top the first bar examination after his
death the institution, devise or legacy shall be valid, since it is possible to ascertain the identity of the designated heir, devisee or legatee either by a
past, present or future event or circumstance.
Notwithstanding the general character of the exception, nevertheless, it may happen that the institution or disposition may not become effective even if
the person instituted may turn out to be a certain or determinate person. This arises when the testator institutes as his heir any person designated by
another person. By this disposition there is in reality a delegation to another person of the power to designate the instituted heir and since this is
prohibited by the provision of Art. 785, it is null and void.
It is, therefore, clear that before the disposition can be considered valid, it is indispensable that the identity of the beneficiary can be ascertained either
by a past, present or future event or circumstance.
It must, however, be noted that his requisite is predicated on the fact that the beneficiary must be in existence at the time of the testators death.
Otherwise, even if it would be possible to determine his identity by some event or circumstance, the disposition would still be ineffective on the ground
of absolute incapacity.
Dispositions in favor of definite class. Dispositions in favor of a definite class or group of persons are of course valid, although the particular
persons comprising the specified class or group may be unknown. The second sentence of Art. 845 which recognizes the validity of such dispositions is
complemented by the provisions of Arts. 786 and 1030 of the present Civil Code.
Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)
Balane: This is a presumption of equality. This supports the underlying principle of this chapter w/c is respect for the wishes of the testator.
Art. 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and
the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of
the testator was otherwise. (769a)
Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half-blood, the inheritance shall
be distributed equally unless a different intention appears. (770a)
Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and
not successively. (771)
Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the
testator would not have made such institution if he had known the falsity of such cause. (767a)
Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes
place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole
inheritance. (n)

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Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion,
as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)
Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance,
or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)
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 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)
Art. 855. The share of a child or descendant omitted in a will must first be 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 other compulsory heirs. (1080a)
Art. 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)
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take,
when referred to by name, cannot be left to the discretion of a third person. (670a)
Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to
specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be
given or applied. (671a)
Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be
operative. (n)
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be
operative shall be preferred. (n)
Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions
must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator
as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding
such oral declarations. (n)
II.

CONDITIONAL TESTAMENTARY DISPOSITIONS AND TESTAMENTARY DISPOSITIONS WITH A TERM

ART 777, 871 885

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)
1.

This article literally means that the "decedent has the right to the succession which is transmitted upon his death." This is illogical bec. the
decedent does not have rights to the succession. To improve the provision, change the words "succession" to "inheritance" (the right to succeed
is an inchoate right) and the verb "transmitted" to "become vested."

2.
a.
b.
c.
d.

Four Elements of Succession: (WADE)

Will or Operation of law
Acceptance.
Death
Existence and capacity of the successor

3.

This provision is the heart and soul of succession. The most essential provision of the law on succession.

4.

Rights to succession vest at the moment of death not transmitted. The right should be made effective from the moment of death. This is so
because the rights to succession before death are mere inchoate. But from the moment of death, those inchoate rights become absolute.

Rights to succession are vested from the moment of death, not upon the filing of petition for testate/ intestate proceedings, not upon the declaration
of heirship or upon settlement of the estate.
The rights to succession are automatic. Tradition or delivery is not needed. Fiction of the law is that from the moment of the death of the
decedent, the right passes to the heirs.
During the lifetime of the predecessor, rights to succession are a mere expectancy. Hence, no contract can be legally entered into regarding the
expected inheritance. When an heir receives his inheritance, he is deemed to have received it at the point of death. This is so by legal fiction to avoid
confusion.
5.

CASES:

Uson v. Del Rosario

Upon the death of the husband before the NCC [1950], the rights of the wife to the inheritance were vested. So the rights of the illegitimate children
under the NCC to inherit cannot prejudice the vested rights of the wife. We have to apply the OCC because at the time of his death, it is the OCC w/c
governed the law on succession. For the determination of successional rights, the law at the point of death should be the one applied.
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Borja v. Borja
The right to inherit is vested at the moment of death. Even if she did not know how much she was going to inherit, she could still dispose of her share in
the inheritance. Said right to the share was hers from the moment of death and she could do whatever she wanted w/ her share, even sell it.
Bonilla v. Barcena
You do not need a declaration of heirship whether testate or intestate, voluntary, etc. The rights of the heirs to the property vest in them even before
judicial declaration of their being heirs in the testate proceedings.
An action to quiet title is not extinguished by the death of the decedent, it being a patrimonial right. Hence, the heirs have the right to be substituted to
the action even before their having declared as heirs.
Jimenez v. Fernandez
Carlos died in 1936, before the effectivity of the NCC. As such, his illegitimate child cannot inherit from him. As such, title to the land belongs to the
cousin who inherited the land w/ Carlos.
Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)
Art. 872. The testator cannot impose [LEVY] any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code.
Should he do so, the same shall be considered as not imposed. (813a)
Art. 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)
Art. 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)
Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other
person shall be void. (794a)
Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a)
Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator,
unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be
deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be
complied with again. (796)
Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs
even before the arrival of the term. (799a)
Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by
giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return
whatever he may have received, together with its fruits and interests. (800a)
Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article. (801a)
Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration
and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a)
Art. 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)
Art. 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)

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Art. 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)
Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case
he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805)
III.

CASES

AUSTRIA V. REYES
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and
LUZ CRUZ-SALONGA respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will
allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz,
Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without
bond by the same court in accordance with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the petitioner Ruben
Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they
are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with
law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners' intervention by its order
of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben
Austria, et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the National Bureau of Investigation for examination
and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to
obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The
petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners
likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained written depositions from two of
them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let al., moved the lower court to set for
hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita Cruz-Meez who entered an appearance separately from that of her brother Perfecto Cruz, filed on
February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted, to
properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and finally,
the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which were not disposed of in
the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the respondents. On October 25, 1963 the
same court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting
petitioners' intervention to properties that were not included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest
surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz,
Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of
legal adoption. At the heart of the controversy is Basilia's last will immaculate in its extrinsic validity since it bears the imprimatur of duly conducted
probate proceedings.
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WILLS AND SUCCESSION WEEK 7

The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim
to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material
nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will
nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article, 842 of
the Civil Code which reads:
One who has no compulsory heirs may dispose of by will 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.
The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which can
be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been disposed of in the
will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic
nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs would
retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the
testator would not have made such institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent
portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente
adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may
apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana
(legiti[ma]), ang kalahati () ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na
napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati () ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking
yumaong ama na si Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana
sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally
bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would not have instituted the respondents at all the basis of the institution being solely her
belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the
estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and
niece from registering their claim even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution
of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would
not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this were
indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the
legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory
heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But
even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails,
however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the
same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et al. solely because she believed that
the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the
institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she
had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless?
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The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were borrowed from the language of the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other than the
way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate ( libre
disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and
the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the
other nephews and nieces would succeed to the bulk of the testate by intestacy a result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive an
interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically
his whole estate,2 as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A probate court has found, by final judgment, that
the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue
influence. In this situation, it becomes our duty to give full expression to her will. 4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and
cannot be the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to state that, as borne by the records,
the subsequent orders complained of served merely to clarify the first an act which the court could legally do. Every court has the inherent power to
amend and control its processes and orders so as to make them conformable to law and justices. 6 That the court a quo has limited the extent of the
petitioners' intervention is also within its powers as articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.
VDA. DEKILAYKO V. TENGCO
G.R. No. 45425 March 27, 1992
CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS L. VDA. DE GUINTO,petitioners,
vs.
HON. JUDGE ERNESTO TENGCO of the Court of First Instance of Negros Occidental, Bacolod City, Branch IV and RODOLFO LIZARES and
AMELO LIZARES, as Judicial Administrators of the Estate of the late EUSTAQUIA LIZARES, respondents.
G.R. No. 45965 March 27, 1992
ROLDOFO LIZARES and AMELO LIZARES, as Judicial Administrators of the ESTATE OF EUSTAQUIA LIZARES, petitioners,
vs.
HON. JUDGE ERNESTO TENGCO, CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS VDA. DE
GUINTO, respondents.
ROMERO, J.:
These consolidated cases seek to annul the orders 1 dated September 20, 1976, January 7, 1977 and January 31, 1977 of the then Court of First
Instance of Negros Occidental, Branch, IV respectively, cancelling the notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the Register of
Deeds of Negros Occidental, denying the motion for reconsideration of the order dated September 20, 1976 filed by Celsa L. Vda. de Kilayko, et al., and
holding in abeyance the resolution of defendants' motion to dismiss.
The undisputed facts of the case are as follows:
On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento" 2 which contains among its provisions, the following:
On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her niece, Eustquia
Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452. 4
The required publication of the notice of hearing of the petition having been made, in due course, the probate court issued an order declaring the will
probated and appointing Eustaquia as the executrix of the estate of Maria Lizares.5
On July 10, 1968, Eustaquia filed a project of partition 6 which was granted by the probate court in an order dated January 8, 1971. 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 each and every one of them, and ordered the Register of Deeds
of Negros Occidental and Bacolod City to effect the corresponding transfer of the real properties to said heirs as well as the transfer of shares, stocks,
and dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs and legatees, and the closure of the
testate proceedings of Maria Lizares. 7
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WILLS AND SUCCESSION WEEK 7

Thereafter, 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. 8 The Court granted the motion and correspondingly reopened the testate proceedings. It 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. 9
On November 28, 1972, the heirs of Maria Lizares, namely: Encarnacion L. Vda. de Panlilio, Remedios L. Vda. de Guinto, Felicidad Paredes Llopez,
Rosario Paredes Mendoza and Eustaquia Lizares executed an agreement of partition and subdivision, thereby terminating their co-ownership over Lots
Nos. 550, 514, 553, 1287-C of plan SWO-7446, and 552, all of the Cadastral Survey of Talisay covered by Transfer Certificates of Title Nos. T-65004, T65005; T-65006, T-65007, and T-65008. 10
A year later or on November 23, 1973, Eustquia Lizares died single without any descendant.
appointed joint administrators of Eustquia's intestate estate.

11

In due time, Rodolfo Lizares and Amelo Lizares were

On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly in the nature of a
simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto (hereinafter collectively referred to as Celsa L.
Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen once again the testate estate proceedings of Maria Lizares. They
prayed among others that a substitute administrator be appointed; that the order dated January 8, 1971 be reconsidered and amended by declaring
them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33 hectares; that the Register of
Deeds of Negros Occidental, after such amendment, be ordered to register at the back of their respective certificates of title, the order of probate and a
"declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo,
and Aurora Lizares Wagner opposed the aforesaid motion. They alleged that the court had no 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. 13
On April 6, 1974, the Court issued an order denying the motion to reopen the testate proceedings and holding that inasmuch as the settlement of an
estate is a proceeding in rem, the judgment therein is binding against the whole world. It observed that inspite of the fact that the movants knew that the
court had jurisdiction over them, they did not take part in the proceedings nor did they appeal the order of January 8, 1971. Thus, the court concluded,
even if the said order was erroneous, and since the error was not jurisdictional, the same could have been corrected only by a regular appeal. The
period for filing a motion for reconsideration having expired, the court opined that the movants could have sought relief from judgment under Rule 38 of
the Rules of Court, but unfortunately for the movants, the period for filing such remedy had also elapsed. 14
Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of said order. It was denied on June 17, 1974. 15 Hence, on October 14, 1974, the
said movants filed a complaint for recovery of ownership and possession of real property against the joining administrators of the estate of Eustaquia
Lizares, Rodolfo and Amelo Lizares. It was docketed as Civil Case No. 11639 with the then Court of First Instance of Negros Occidental, Branch
IV. 16 On
the
same
date,
they
availed
of
their
rights
under
Rule
14,
Section
24
of
Rules
of
Court
by filing a notice of lis pendens with the Register of Deeds of Negros Occidental. 17
As duly appointed judicial joint administrators of the estate of the late Eustaquia Lizares, Rodolfo Lizares and Amelo Lizares (the joint administrators for
brevity), filed a motion to dismiss alleging that the court had no jurisdiction over the subject matter or nature of the case; the cause of action was barred
by prior judgment, and the complaint stated no cause of action. 18 This motion was opposed by the plaintiffs.
On January 23, 1975, the joint administrators filed a motion for the cancellation of the notice of lis pendens on the contentions that there existed
exceptional circumstances which justified the cancellation of the notice of lis pendensand that no prejudice would be caused to the plaintiffs. 19 The latter
opposed said motion. The defendants having filed a reply thereto, the plaintiffs filed a rejoinder reiterating their arguments in their opposition to the
motion for cancellation of notice of lis pendens. 20
On September 20, 1976, respondent judge issued an order granting the motion for cancellation of notice of lis pendens. 21 The court simultaneously held
in abeyance the resolution of the motion to dismiss the complaint.
The joint administrators filed the answer to the complaint in Civil Case No. 11639.
defenses. 23 Celsa L. Vda. de Kilayko, et al. vigorously opposed said motion. 24

22

Thereafter, they filed a motion for preliminary hearing on affirmative

On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion praying for the reconsideration of the order dated September 20, 1976. 25 The joint
administrators having filed an opposition thereto, 26 on January 7, 1977 the lower court denied the aforesaid motion for reconsideration. 27 It held that
while a notice of lis pendens would serve as notice to strangers that a particular property was under litigation, its annotation upon the certificates of title
to the properties involved was not necessary because such properties, being in custodia legis, could not just be alienated without the approval of the
court. Moreover, the court added, a notice of lis pendens would prejudice any effort of the estate to secure crop loans which were necessary for the
viable cultivation and production of sugar to which the properties were planted.
Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in this Court a motion for extension of time to file a petition for review
on certiorari. Docketed as G.R No. L-45425, the petition contends that the grounds of lis pendens, namely, that the properties are in custodia legis and
the lending institutions would not grant crop loans to the estate, are not the legal grounds provided for under Sec. 24, Rule 14 of the Rules of Court for
the cancellation of a notice of lis pendens.
Meanwhile, on January 31, 1977, the lower court issued an order stating that since on September 21, 1976 it had held in abeyance the resolution of the
motion to dismiss, it was also proper to suspend the resolution of the affirmative defenses interposed by the defendants until after trial on the merits of
the case. Accordingly, the court set the date of pre-trial for March 24, 1977. 28
On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition and/ormandamus with prayer for a writ of preliminary
injunction. It was docketed as G.R. No. L-45965. Petitioners contend that the lower court had no jurisdiction over Civil Case No. 11639 as it involves the
interpretation of the will of Maria Lizares, its implementation and/or the adjudication of her properties. They assert that the matter had been settled in
Special Proceedings No. become final and unappealable long before the complaint in Civil Case No. 8452 which had become final and unappealable
long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause of action in the latter case was barred by the principle of res
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WILLS AND SUCCESSION WEEK 7

judicata. They aver that the claim of Celsa, Encarnacion and Remedios, sisters of Maria Lizares, 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 contend 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.
On April 26, 1977, this Court issued a temporary restraining order enjoining the lower court from further proceeding with the trial of Civil Case No.
11639. 29 After both G.R. Nos. L-45425 and L-45965 had been given due course and submitted for decision, on January 20, 1986, the two cases were
consolidated.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until after the will has been probated. 30 The law enjoins the probate of a will and
the public requires it, because unless a 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. 31 The authentication of a will decides no other question than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law prescribes for the validity of a will. 32
Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1, Rule 90 of the Rules of Court which reads:
Sec. 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on application of the executor or
administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons
entitled to the same, naming them and the proportions or parts, to which each is entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before
the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributees,
or any of them give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court
directs.
Applying this rule, in the cases of De Jesus v. Daza, 33 and Torres v. Encarnacion, 34 the Court said:
. . . (T)he probate court, having the custody and control of the entire estate, is the most logical authority to effectuate this provision, within the
estate proceeding, said proceeding being the most convenient one in which this power and function of the court can be exercised and
performed without the necessity of requiring the parties to undergo the incovenience and litigate an entirely different action.
Some decisions of the Court pertinent to the issue that the probate court has the jurisdiction to settle the claims of an heir and the consequent
adjudication of the properties, are worth mentioning. In the cases of Arroyo v. Gerona,35 and Benedicto v. Javellana, 36 this Court said:
. . . 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. . . .
(Emphasis supplied)
The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is
entitled . . .. 37 A project of partition is merely a proposal for the distribution of the heredity 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. 38
In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on
January 8, 1971, 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 on November 28, 1972, whereby they agreed to terminate their co-ownership
over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and 552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-65007 and T65008. 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. 39 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. 40 The question of private respondents title over the lots in question has been concluded by the
partition and became a closed matter.
The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint, Civil Case No. 11639, that Eustaquia had been in possession of the
questioned lots since March 2, 1971 up to the time of her death indicates that the distribution pursuant to the decree of partition has already been carried
out. Moreover, it cannot be denied that when Celsa L. Vda. de Kilayko, et al. 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 (30) days
having elapsed from the time of its issuance, with no timely appeal having been filed by them. Therefore, they cannot now be permitted to question the
adjudication of the properties left by will of Maria Lizares, by filing an independent action for the reconveyance of the very same properties subject of
such partition.

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WILLS AND SUCCESSION WEEK 7

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. 41
It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the risk of occasional errors, judgments of courts should
become final at some definite time fixed by law, interest rei publicae ut finis sit litum. "The very object of which the courts were constituted was to put an
end to controversies." 42 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 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. 43
The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be permitted to litigate the same issue more than
once, that, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been
given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or
estate. 44
All the requisites for the existence of res judicata are present. Thus, the order approving the distribution of the estate of Maria Lizares to the heirs
instituted in said will has become final and unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and over the
parties; the judgment or orders had been rendered on the merits; the special proceedings for the settlement of the estate of Maria Lizares was a
proceedingin rem that was directed against the whole world including Celsa L. Vda. de Kilayko, et al., so that it can be said that there is a similarity of
parties in Special Proceedings No. 8452 and Civil Case No. 11639, the judicial administrators of Eustaquia being privy to Celsa L. Vda. de Kilayko, et al.;
there is identity of subject matter involved in both actions, namely, the properties left by Maria Lizares; there is identity of causes of action because in the
first action there was a declaration of the probate court in its order dated April 6, 1974 that 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. 45
Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of Celsa L. Vda. de Kilayko, et al. that they are
conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares 46 is not meritorious. 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 Celsa L. Vda. de Kilayko, et al., 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. 47 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.
With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit in the contention of Celsa L. Vda. de Kilayko, et
al., that the lower court acted contrary to law and/or gravely abused its discretion in cancelling the notice of lis pendens. The cancellation of such a
precautionary notice, being a mere incident in an action, may be ordered by the court having jurisdiction over it at any given time. 48 Under Sec. 24, Rule
14 of the Rules of Court, a notice of lis pendens may be cancelled "after proper showing that the notice is for the purpose of molesting the adverse party,
or that it is not necessary to protect the rights of the party who caused it to be recorded." 49 In this case, the lower court ordered the cancellation of said
notice on the principal reason that the administrators of the properties involved are subject to the supervision of the court and the said properties are
under custodia legis. Therefore, such notice was not necessary to protect the rights of Celsa L. Vda. de Kilayko, et al. More so in this case where it
turned out that their claim to the properties left by Eustaquia is without any legal basis.
WHEREFORE, the petition for review on certiorari in L-45425 is hereby DENIED but the petition for certiorari and prohibition and/or mandamus in L45965 is GRANTED. The temporary restraining order of April 26, 1977 which was issued by the Court in L-45965 is made PERMANENT. Costs against
the petitioners in L-45425.
SO ORDERED.
Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
Feliciano, J., is on leave.

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