Uson v.

Del Rosario, 92:530| Andres

FACTS: This is an action for recovery of the ownership and possession of five (5) parcels of land in Pangasinan,
filed by Maria Uson against Maria del Rosario and her four illegit children.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this
litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands
thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that Uson and her husband, executed a public document
whereby they agreed to separate as husband and wife and, in consideration of which Uson was given a parcel of
land and in return she renounced her right to inherit any other property that may be left by her husband upon his
death. CFI found for Uson. Defendants appealed.
ISSUE:
1. W/N Uson has a right over the lands from the moment of death of her husband.
2. W/N the illegit children of deceased and his common-law wife have successional rights.
HELD:
1. Yes. There is no dispute that Maria Uson, is the lawful wife of Faustino Nebreda, former owner of the five
parcels of lands litigated in the present case.
There is likewise no dispute that Maria del Rosario, was merely a common-law wife with whom she had four
illegitimate children with the deceased. It likewise appears that Faustino Nebreda died in 1945 much prior to the
effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the
five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow
Maria Uson (Art 777 NCC).
As this Court aptly said, The property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for the same before his death. From
that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she
expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the
deed of separation, cannot be entertained for the simple reason that future inheritance cannot be the subject of a
contract nor can it be renounced.
2. No. The provisions of the NCC shall be given retroactive effect even though the event which gave rise to them
may have occurred under the prior legislation only if no vested rights are impaired.

Hence, since the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the
death of her late husband, the new right recognized by the new Civil Code in favor of the illegitimate children of
the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in
dispute.
DIEGST 2

USON v. DEL ROSARIO

GR No.L-4963, January 29, 1953
92 PHIL 530
FACTS: Faustino Nebreda died in 1945 leaving as an only heir his estranged wife
Maria Uson, the petitioner. The latter sued to recover the ownership and possession
of five parcels of land occupied by defendant Maria del Rosario, decedent's commonlaw-spouse and her children. As a defense, defendant presented a deed of
separation agreed upon and signed Faustino and Uson containing among others an
statement giving a parcel of land to Uson as an alimony and the latter renouncing
her
rights
to
any
inheritance
from
Faustino.
The defendant also contends that while it is true that the four minor defendants are
illegitimate children of the decedent and under the old Civil Code are not entitled to
any successional rights, however, under the new Civil Code they are given the status
and rights of natural children and are entitled to the successional rights which the
law accords to the latter (article 2264 and article 287, new Civil Code), and because
these successional rights were declared for the first time in the new code, they shall
be given retroactive effect even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil Code).
ISSUE: Are the contentions of the defendants correct?
HELD: No. It is evident that when the decedent died in 1945 the five parcels of land
he was seized of at the time passed from the moment of his death to his only heir,
his widow Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The
property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for the
same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the lands in question
became
vested.
The claim of the defendants that Uson had relinquished her right over the lands in
question in view of her expressed renunciation to inherit any future property that her
husband may acquire and leave upon his death in the deed of separation they had
entered into cannot be entertained for the simple reason that future inheritance
cannot be the subject of a contract nor can it be renounced.
Nor does the contention that the provisions of the New Civil Code shall apply and be
given retroactive effect. Article 2253 above referred to provides indeed that rights
which are declared for the first time shall have retroactive effect even though the
event which gave rise to them may have occurred under the former legislation, but
this is so only when the new rights do not prejudice any vested or acquired right of

the same origin... As already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became vested in 1945 upon the
death of her late husband and this is so because of the imperative provision of the
law which commands that the rights to succession are transmitted from the moment
of death (Article 657, old Civil Code). The new right recognized by the new Civil Code
in favor of the illegitimate children of the deceased cannot, therefore, be asserted to
the impairment of the vested right of Maria Uson over the lands in dispute.
2. Borja v. Borja, 46 SCRA 577 | Ang
FACTS: Francisco de Borja filed a petition for probate of the will of his wife who died, Josefa Tangco, with the CFI
of Rizal. He was appointed executor and administrator, until he died; his son Jose became the sole administrator.
Francisco had taken a 2nd wife Tasiana before he died; she instituted testate proceedings with the CFI of Nueva
Ecija upon his death and was appointed special administatrix. Jose and Tasiana entered upon a compromise
agreement, but Tasiana opposed the approval of the compromise agreement.

She argues that it was no valid, because the heirs cannot enter into such kind of agreement without first probating
the will of Francisco, and at the time the agreement was made, the will was still being probated with the CFI of
Nueva Ecija.
ISSUE: W/N the compromise agreement is valid, even if the will of Francisco has not yet been probated.
HELD: YES, the compromise agreement is valid.

The agreement stipulated that Tasiana will receive P800,000 as full payment for her hereditary share in the estate
of Francisco and Josefa.
There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before
the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any
and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa
Tangco. There is no stipulation as to any other claimant, creditor or legatee.
And as a hereditary share in a decedents estate is transmitted or vested immediately from the moment of the
death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777)there is no legal bar to a
successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such
death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate.

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

DIGEST 2

Bonilla v. Barcena, 71 SCRA 491 | Angliongto

FACTS: On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife
of Ponciano Bonilla, instituted a civil action in the CFI of Abra, to quiet title over certain parcels of land located in
Abra.
The defendants filed a motion to dismiss the complaint on the ground that Fortunata Barcena is dead and,
therefore, has no legal capacity to sue. In the hearing for the motion to dismiss, counsel for the plaintiff confirmed
the death of Fortunata Barcena, and asked for substitution by her minor children and her husband; but the court
after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in
interest and has no legal personality to sue.
ISSUE: W/N the CFI erred in dismissing the complaint.
HELD: While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion.
The records of this case show that the death of Fortunata Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata
Barcena was still alive, and therefore, the court had acquired jurisdiction over her person.
Under Section 16, Rule 3 of the Rules of Court whenever a party to a pending case dies it shall be the duty of
his attorney to inform the court promptly of such death and to give the name and residence of his executor,
administrator, guardian or other legal representatives. This duty was complied with by the counsel for the

deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975
and asked for the proper substitution of parties in the case.
The respondent Court, however, instead of allowing the substitution, dismissed the complaint on the ground that a
dead person has no legal personality to sue.
This is a grave error. Article 777 of the Civil Code provides that the rights to the succession are transmitted from
the moment of the death of the decedent.
From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to
the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the
methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite
right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings.
When Fortunata Barcena, therefore, died, her claim or right to the parcels of land in litigation in Civil Case No.
856, was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus
acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no
reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.
The claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects
primarily and principally property and property rights and therefore is one that survives even after her death.
It is, therefore, the duty of the respondent Court to order the legal representative of the deceased plaintiff to
appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for
the deceased plaintiff that the latter was dead, was to dismiss the complaint.
This should not have been done for under Section 17, Rule 3 of the Rules of Court, it is even the duty of the
court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal
representative of the deceased.
Unquestionably, the respondent Court has gravely abused its discretion in not complying with the clear provision
of the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution
of parties in the case.

(Bonilla v. Barcena (1976) [16]

The heirs have the right to be substituted for the deceased as party on an action
that survives.
While it is true that a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion.

 The moment of death is the determining factor when the heirs acquire a
definite right to the inheritance whether such right be pure or contingent. Thus,
when F died, her claim or right to the parcel s of land in litigation was not
extinguished by her death but was transmitted to her heirs upon her death. Her
heirs have thus acquired interest in the properties in litigation and became
parties-in-interest in the case.
The question as to whether an action survives or not depends on the nature of
the action and the damage sued for.
1) Survive: wrong complained of affects primarily and principally property and
property rights, the injuries to the person being merely incidental
2) Not survive: injury complained of is to the person, the property and rights of
property affected being incidental.
In instant case, an action to quiet title over land in litigation affects primarily
and principally property and property rights, and therefore is one that survives
even after Fs death.)
BORROMEO- HERRERA V. BORROMEO, 152 SCRA 171

FACTS:

Testator, a widower, died without forced heirs but leaving extensive

properties divising all his properties to Tomas, Fortunato and Amelia, all
surnamed Borromeo, in equal and undivided shares, and designating Junquera as
executor thereof.

Opposition to the probate were filed, that the document presentented as

the will of the deceased was a forgery.

The testate proceeding was converted into intestate proceeding. Several

parties came before the court filing claims or petitions alleging themselves as
heirs of the intestate estate of Vito Borromeo.

Fortunato filed a motion before the trial court praying that he be declared
as one of the heirs of the deceased Vito Borromeo, alleging that he is an
illegitimate son and he was omitted by the trial court in the declaration of heirs.

Fortunato contends that under Art. 1043 of the Civil Code, there is no need
for a person to be first declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of the death of the
person whom he is to inherit and that he must be certain of his right of
inheritance.
RULING:
The prevailing jurisprudence on waiver of hereditary rights is that the properties
included in an existing inheritance cannot be considered as belonging to third
person with respect to the heirs, who by fiction of law continue the personality of
the former;
XXV. COLLATION

Cayetano v. Leonidas
Summary: decedent who was a former Filipino citizen naturalized as
a citizen of Pennsylvania, executed a will in US which did not leave
anything to her father, who was her sole compulsory heir. Court held
that since the decedent was already a US Citizen at the time she
made her will, US laws would apply as to intrinsic validity (thus, no
need for legitimes - her father would not have aything)
Facts
Decedent: Adoracion Campos
Surviving heirs:

Father: Hermogenes - only compulsory heir

Sisters: Nenita Paguia, Remedios Lopez and Marieta Medina

-Hermogenes executed an Affidavit of Adjudication whereby he
adjudicated unto himself the ownership of the entire estate of
Adoracion
-11 months after, Nenita Paguia filed a petition for the reprobate
of a will of Adoracion, which was allegedly executed in the US and
for her appointment as administratrix of the estate of the deceased
testatrix.
- An opposition to the reprobate of the will was filed by
Hermogenes:

will in question is a forgery

intrinsic provisions of the will are null and void

even if pertinent American laws on intrinsic provisions are

invoked, the same could not apply inasmuch as they would work
injustice and injury to him
- Hermogenes filed a Motion to Dismiss Opposition (With Waiver
of Rights or Interests):confirms validity of will
-TC: admitted last will and testament, allowed probate inRP
- Hermogenes filed a petition for relief:

withdrawal of his opposition was secured through fraud

+ motion entitled "Motion to Vacate and/or Set Aside the Order of
January 10, 1979, and/or dismiss the case for lack of jurisdiction.
-TC: dismissed: failed to present evidence in support of it
WILL:

Adoracion was a US citizen, a permanent resident of

Pennsylvania at the time she made the will

She died in Manila while temporarily residing with her sister

Made in accordance with Pennsylvania law, probated and

registered in Penn. after her death
WON the intrinsic validity of the will can be passed upon
during probate of the will? YES HERE.
GR: probate court's authority is limited only to:

the extrinsic validity of the will

due execution

testatrix's testamentary capacity

Compliance with the requisites or solemnities prescribed by

law

X: where practical considerations demand intrinsic validity to be

passed upon
WON the will is valid even if the compulsory heir was deprived
of his legitime? YES
It was sufficiently established that Adoracion was, at the time

of her death, an American citizen and a permanent resident of

Philadelphia, Pennsylvania, U.S.A.
Capacity to succeed is governed by the law of the

nation of the decedent: law of Pennsylvania, U.S.A., which is

the national law of the decedent. [Article 16(2) and 1039 of the
Civil Code]
Pennsylvania law: no legitimes, testator could give away

entire estate to strangers!

WON the will (which completely deprived compulsory heir of
share) is against public policy? NO
-used Bellis v. Bellis: whatever public policy or good customs may
be involved, Congress has not intended to extend the same to the
succession of foreign nationals
DIGEST 2

o
o

GENERAL RULE: Limited jurisdiction of the probate court

EXCEPTION: Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issues.
FACTS:
Adoracion C. Campos died, leaving Hermogenes Campos (father) and her sisters, Nenita
Paguia, Remedios Lopez, and Marieta Medina as the surviving heirs. As the only
compulsory heir is Hermogenes, he executed an Affidavit of Adjudication, adjudicating unto
himself the entire estate of Adoracion.
Later that same year, Nenita filed a petition for reprobate of a will, alleging among others that
Adoracion was an American citizen and that the will was executed in teh US. Adoracion died
in Manila while temporarily residing in Malate.
While this case was still pending, Hermogenes died and left a will, appointing Polly Cayetano
as the executrix. Hence, this case.
ISSUEs:

Whether or not the will was valid

Whether or not the court has jurisdiction over probate proceedings

HELD:
As a general rule, the probate court's authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testatrix's testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity normally comes only
after the court has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issues.
In this case, it was sufficiently established that Adoracion was an American citizen and the
law which governs her will is the law of Pennsylvania, USA, which is the national law of the
decedent.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, the national
law of the decedent must apply.
As to the issue of jurisdiction -The settlement of estate of Adoracion Campos was correctly filed with the CFI of Manila
where she had an estate since it was alleged and proven that Adoracion at the time of her
death was a citizen and permanent resident of Pennsylvania, USA and not a usual resident
of Cavite.
Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in
the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to
secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate
or question that same jurisdiction.

Parish Priest of Victoria v. Rigor

FACTS:

(The will of the testator is the first and principal law in the matter of testaments. When
his intention is clearly and precisely expressed, any iterpretation must be in accord with
the plain and literal meaning of his words, except when it may certainly appear that his
contention was different from that literally expressed.
The intent of the testator is the cardinal rule in the construction of wills. It is the greatest
rule in giving effect to a will.
From the testamentary provisions, it may be deduced that the testator intended to
devise the ricelands to his nearest male relative who would become a priest, who was
forbidden to sell the ricelands, who would lose the devise if he discontinued his studies
for the priesthood, or having been ordained a priest, he was excommunicated, and who
would be obligated to say masses for the repose of the souls of the testator and his
parents.
On the other hand, it is clear that the parish priest of Victoria would administer the
ricelands only in two situations: (a) during the interval of time that no nearest male
relative of the testator was studying for priesthood; and (b) in case the testator's
nephew became a priest and he was excommunicated.
Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore,
the administration of the ricelands by the parish priest of Victoria as envisaged in the will was
likewise inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in his
favor assumes that he was a trustee or a substitute devisee. The contention is untenable. A
reading of the testamentary provisions does not support the view that the parish priest was a
trustee or a substitute devisee in the event that the testator was not survived by a nephew who
became a priest.
The CA correctly rules that this case is covered by Article 956 of the Civil Code which provides that
if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in
cases of substitution and those in this the right of accretion exists."
This case is also covered by Article 960(2) which provides "legal succession takes place when the
will does not dispose of all the belongings to the testator." There being mo substitution nor
accretion as to the said ricelands, the same should be distributed among the legal heirs. The effect
is as if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there
may be mixed succession. If a conditional legacy does not take effect, there will be intestate
succession as to the property recovered by the said legacy.)

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

REYES vs CA

HELD

Bellis vs Bellis
FACTS:
Amos G. Bellis was a citizen of the State of Texas and of the United States. He had five
legitimate children with his first wife (whom he divorced), three legitimate children with his second
wife (who survived him) and, finally, three illegitimate children.
6 years prior Amos Bellis death, he executed two(2) wills, apportioning the remainder of his
estate and properties to his seven surviving children. The appellants filed their oppositions to the
project of partition claiming that they have been deprived of their legitimes to which they were
entitled according to the Philippine law. Appellants argued that the deceased wanted his
Philippine estate to be governed by the Philippine law, thus the creation of two separate wills.
ISSUE:

Whether or not the Philippine law be applied in the case in the determination of the illegitimate
childrens successional rights
RULING:
Court ruled that provision in a foreigners will to the effect that his properties shall be distributed
in accordance with Philippine law and not with his national law, is illegal and void, for his national
law cannot be ignored in view of those matters that Article 10 now Article 16 of the Civil
Code states said national law should govern.
Where the testator was a citizen of Texas and domiciled in Texas, the intrinsic validity of his will
should be governed by his national law. Since Texas law does not require legitimes, then his will,
which deprived his illegitimate children of the legitimes, is valid.
The Supreme Court held that the illegitimate children are not entitled to the legitimes under the
texas law, which is the national law of the deceased.

Testamentary Succession
Suroza v. Honrado,
110 SCRA 388 Succession Will Should be Written in a Language Known to the
Testator
In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house
and lot to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as
the executrix in the said will and she petitioned before CFI Rizal that the will be admitted
to probate. The presiding judge, Honrado admitted the will to probate and assigned Paje
as the administratrix. Honrado also issued an ejectment order against the occupants of
the house and lot subject of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was
confined in the Veterans Hospital), learned of the probate proceeding when she
received the ejectment order (as she was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said notarial will is void
because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a
stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is
the compulsory heir, (c) the notarial will is written in English a language not known to
Marcelina because the latter was illiterate so much so that she merely thumbmarked the
will, (d) the notary public who notarized will admitted that Marcelina never appeared
before him and that he notarized the said will merely to accommodate the request of a
lawyer friend but with the understanding that Marcelina should later appear before him
but that never happened.

Honrado still continued with the probate despite the opposition until testamentary
proceeding closed and the property transferred to Marilyn Sy.
Nenita then filed this administrative case against Honrado on the ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting into probate a void
will.
HELD: Yes. Despite the valid claim raised by Nenita, he still continued with the
testamentary proceeding, this showed his wrongful intent. He may even be criminally
liable for knowingly rendering an unjust judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance.
The will is written in English and was thumb marked by an obviously illiterate Marcelina.
This could have readily been perceived by Honrado that that the will is void. In the
opening paragraph of the will, it was stated that English was a language understood
and known to the testatrix. But in its concluding paragraph, it was stated that the will
was read to the testatrix and translated into Filipino language. That could only mean
that the will was written in a language not known to the illiterate testatrix and, therefore, it
is void because of the mandatory provision of Article 804 of the Civil Code that every will
must be executed in a language or dialect known to the testator. Had Honrado been
careful and observant, he could have noted not only the anomaly as to the language of
the will but also that there was something wrong in instituting to Marilyn Sy as sole
heiress and giving nothing at all to Agapito who was still alive.
Honrado was fined by the Supreme Court.

Garcia v. Lacuesta,
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO
GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro
L.
Peralta
and
Hermenegildo
A.
Prieto
for
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

petitioner.

DECISION
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains
the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it bears the corresponding number in letter
which compose of three pages and all them were signed in the presence of the testator
and witnesses, and the witnesses in the presence of the testator and all and each and
every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO
EVANGELISTA

(Sgd.) ROSENDA
CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by A reugo del testator and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross immediately after his name.
The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all
the left margins of the three pages and at the end of the will by Atty. Florentino Javier at
the express request of the testator in the presence of the testator and each and every
one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the formers request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end
thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in
the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testators name under his express
direction, as required by Section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioners theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,
81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and

the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital
in the attestation clause as to the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
DIGEST 2

Facts:
1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943. The said
will was written in Ilocano dialect.
2. The will appears to have been signed by Atty. Florentino Javier who wrote the name of
the testator followed below by 'A ruego del testador' and the name of Florentino Javier. In
effect, it was signed by another although under the express direction of the testator. This
fact however was not recited in the attestation clause. Mercado also affixed a cross on the
will.
3. The lower court admitted the will to probate but this order was reversed by the Court of
Appeals on the ground that the attestation failed to recite the facts surrounding the signing
of the testator and the witnesses.
Issue: Whether or not the attestation clause in the will is valid
HELD: NO the attestation is fatally defective for its failure to state that Antero or the
testator caused Atty. Javier to write the former's name under his express direction as
required by Sec. 618 of the Civil Procedure. Finally, on the cross affixed on the will by
the testator, the Court held that it is not prepared to liken the mere sign of a cross to a
thumbmark for obvious reasons- the cross does not have the trustworthiness of a
thumbmark so it is not considered as a valid signature.

Matias v. Salud
L-10751, 23 June 1958
FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina
Raquel was suffering from herpes zoster that afflicted the right arm and shoulder of
the testatrix, which made writing difficult and a painful act. Thus, upon the
insistence of the attorney, Gabina attempted to sign, but since it was so painful she
just managed to thumbmarked the foot of the document and the left margin at each
page. The parties opposing the probate of the will contended that the will was void
due to the irregularities in the execution thereof.
One of the points raised by the oppositors was that the finger mark can not be
regarded as the decedents valid signature as it does not show distinct identifying
ridgelines. And since the finger mark was an invalid signature, there must appear in
the attestation clause that another person wrote the testators name at his request.
ISSUE:
W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so dependent on
aleatoryrequirements as to require dexterity that can be expected of very few
persons; testators should not be required to possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held that it has been
held in a long line of cases that a thumbprint is always a valid and
sufficientsignature for the purpose of complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness
orinfirmity. A thumbprint is considered as a valid and sufficient signature in
complying with the requirements of the article.
Nera v. Rimando,
When a certain will was being signed, it was alleged that the testator and some
subscribing witnesses were in the inner room while the other subscribing witnesses were
in the outer room. What separates the inner room from the outer room was a curtain.
The trial court ignored this fact in its determination of the case as it ruled that the
determination of this specific fact will not affect the outcome of the case.
ISSUE: What is the true test of the testators or the witness presence in the signing of a
will?

HELD: The Supreme Court emphasized that the true test of presence of the testator and
the witnesses in the execution of a will is not whether they actually saw each other sign,
but whether they might have seen each other sign, had they chosen to do so,
considering their mental and physical condition and position with relation to each other at
the moment of inscription of each signature.
The position of the parties with relation to each other at the moment of the subscription
of each signature, must be such that they may see each other sign if they choose to do
so.
The Supreme Court, in this case, determined that all the parties were in the same small
room when each other signed. Hence, they were in each others presence (though the
facts of the case didnt elaborate the SC just ruled so). The SC ruled that if some of the
witnesses were really in the outer room (a fact which was not established according to
the SC) separated by a curtain, then the will is invalid, the attaching of those signatures
under circumstances not being done in the presence of the witness in the outer room.
DIGEST 2

'Test of Presence'
Facts:
1. At the time the will was executed, in a large room connecting with a smaller room by a
doorway where a curtain hangs across, one of the witnesses was in the outside room when
the other witnesses were attaching their signatures to the instrument.
2. The trial court did not consider the determination of the issue as to the position of the
witness as of vital importance in determining the case. It agreed with the ruling in the
case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing
witnesses was in the outer room while the signing occurred in the inner room, would not
be sufficient to invalidate the execution of the will.
3. The CA deemed the will valid.
Issue: Whether or not the subscribing witness was able to see the testator and other
witnesses in the act of affixing their signatures.
HELD: YES
The Court is unanimous in its opinion that had the witnesses been proven to be in the
outer room when the testator and other witnesses signed the will in the inner room, it
would have invalidated the will since the attaching of the signatures under the
circumstances was not done 'in the presence' of the witnesses in the outer room. The line
of vision of the witness to the testator and other witnesses was blocked by the curtain
separating the rooms.
The position of the parties must be such that with relation to each other at the moment of
the attaching the signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy saw each
other sign but whether they might have seen each other sign if they chose to doso
considering their physical, mental condition and position in relation to each other at the
moment of the inscription of the signature.

Icasiano v. Icasiano Digest

Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964
Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for
his appointment as executor thereof. It appears from the evidence that the testatrix died on
September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer,
it was prepared in duplicates, an original and a carbon copy.
2. On the day that it was subscribed and attested, the lawyer only brought the original
copy of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the
witnesses failed to sign one of the pages in the original copy but admitted he may have
lifted 2 pages simultaneously instead when he signed the will. Nevertheless, he affirmed
that the will was signed by the testator and other witnesses in his presence.
Issue: Whether or not the failure of one of the subscribing witnesses to affix his
signature to a page is sufficient to deny probate of the will
RULING: No, the failure to sign was entirely through pure oversight or mere
inadvertence. Since the duplicated bore the required signatures, this proves that the
omission was not intentional. Even if the original is in existence, a duplicate may still be
admitted to probate since the original is deemed to be defective, then in law, there is no
other will bu the duly signed carbon duplicate and the same can be probated.
The law should not be strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she has no control of.
Where the purpose of the law is to guarantee the identity of the testament and its
component pages, and there is no intentional or deliberate deviation existed.
Note that this ruling should not be taken as a departure from the rules that the will should
be signed by the witnesses on every page. The carbon copy duplicate was regular in all
respects.

DIGEST 2
Icasiano v. Icasiano, 11 SCRA 422 | Dela Cuesta

Celso Icasiano filed a petition for the allowance and admission to probate of the alleged will of Josefa Villacorte,
and for his appointment as executor thereof. Natividad and Enrique Icasiano, a daughter and son of the testatrix,
filed their opposition thereto. During the course of the trial, on 19 March 1959, Celso, started to present his
evidence. But later, on 1 June 1959, he then filed an amended and supplemental petition, alleging that the
decedent had left a will executed in duplicate and with all the legal requirements, and that he was submitting the
duplicate to the court, which he found only on 26 May 1959. Natividad and Enrique filed their opposition, but the
will and its duplicate was admitted to probate by the trial court. Hence, this appeal by the oppositors.
Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to the effect that the signatures
of the testatrix in the duplicate are not genuine, nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine, they were executed through mistake and
with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament
the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby
proponents- appellees stand to profit from properties held by them as attorneys- in-fact of the deceased and not
enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free
disposal.
Was the trial court correct in admitting the will and its duplicate to probate given the allegations of forgery of the
testators signature, or that the will was executed under circumstances constituting fraud and undue influence and
pressure? (Not raised by the appellants in the case but discussed by the Court and in Sirs book) Is the failure of
one of the witnesses to sign a page of the will fatal to its validity?
The Supreme Court dismissed the appeal, holding that both the will and its duplicate are valid in all respects.
On the allegations of forgery, fraud and undue influence:
The Court is satisfied that all the requisites for the validity of a will have been complied with. The opinion of a
handwriting expert trying to prove forgery of the testatrixs signature failed to convince the Court, not only
because it is directly contradicted by another expert but principally because of the paucity of the standards used
by him (only three other signatures), considering the advanced age of the testatrix, the evident variability of her
signature, and the effect of writing fatigue.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not
appear reliable, considering that standard and challenged writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole, the testimony of the oppositors expert is insufficient to
overcome that of the notary and the two instrumental witnesses as to the wills execution, which were presented
by Celso during the trial.
Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are more favored than
others is proof of neither. Diversity of apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary disposition that the heirs should not inquire into other
property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in

the free part, do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being
diverted into the hands of non- heirs and speculators. Whether these clauses are valid or not is a matter to be
litigated on another occasion. It is also well to note that fraud and undue influence are mutually repugnant and
exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the
validity of the will.

Cruz v. Villasor,

Javellana v. Ledesma Digest

Javellana vs. Ledesma
G.R. No. L-7179
Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased
Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950 and
May 1952. The contestant was the sister and nearest surviving relative of the deceased.
She appealed from this decision alleging that the will were not executed in accordance
with law.
2. The testament was executed at the house of the testatrix. One the other hand, the
codicil was executed after the enactment of the New Civil Code (NCC), and therefore had
to be acknowledged before a notary public. Now, the contestant, who happens to be one
of the instrumental witnesses asserted that after the codicil was signed and attested at the
San Pablo hospital, that Gimotea (the notary) signed and sealed it on the same occasion.
Gimotea, however, said that he did not do so, and that the act of signing and sealing was
done afterwards.
2. One of the allegations was that the certificate of acknowledgement to the codicil was
signed somewhere else or in the office of the notary. The ix and the witnesses at the
hospital, was signed and sealed by the notary only when he brought it in his office.
Issue: Whether or not the signing and sealing of the will or codicil in the absence of
the testator and witnesses affects the validity of the will
RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the
signing of the testator, the witnesses and the notary be accomplished in one single act. All
that is required is that every will must be acknowledged before a notary public by the
testator and witnesses. The subsequent signing and sealing is not part of the
acknowledgement itself nor of the testamentary act. Their separate execution out of the
presence of the testator and the witnesses cannot be a violation of the rule that testaments
should be completed without interruption.

Caneda v. Court of Appeals,

FACTS:
On December 5, 1978, Mateo Caballero, a widower without any children, already
in the twilight years of his life executed a last will and testament before three
attesting witnesses and he was duly assisted by his lawyer and a notary public. It
was declared therein that, among other things that the testator was leaving by way of
legacies and devises his real and personal properties to specific persons, all of
whom do not appear to be related to Mateo. Not long after, he himself filed a petition
before the CFI seeking the probate of his last will and testament but the scheduled
hearings were postponed, until the testator passed away before his petition could
finally be heard by the probate court. Benoni Cabrera, one of the legatees named in
the will, sought his appointment as special administrator of the testators estate but

due to his death, he was succeeded by William Cabrera, who was appointed by RTC
which is already the probate court.
CONTENTIONS:
PETITIONERS:
The petitioners assail to the allowance of the testator's will on the ground that
it was not executed in accordance with all the requisites of law since the testator was
already in a poor state of health such that he could not have possibly executed the
same. Petitioners likewise contend that the will is null and void because its
attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their
presence and that they also signed the will and all the pages thereof in the presence
of the testator and of one another.
RESPONDENTS:
The respondent, on the other hand, argue that Mateo was of sound and
disposing mind and in good health when he executed his will. Further, they also
contend that the witnesses attested and signed the will in the presence of the
testator and of each other.
ISSUES:
1. Whether or not the attestation clause in the last will of Mateo Caballero is
fatally defective such that whether or not it affects the validity of the will.
2. Whether or not the attestation clause complies with the substantial
compliance pursuant to Article 809 of the Civil Code.

RULING:
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before them and to
the manner of the execution of the same. It is a separate memorandum or record of
the facts surrounding the conduct of execution and once signed by the witnesses; it
gives affirmation to the fact that compliance with the essential formalities required by
law has been observed. Under the 3 rd paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the will, should state:
1. The number of pages used upon which the will is written;
2. That the testator signed, or expressly cause another to sign, the will and
every page thereof in the presence of the attesting witnesses; and
3. That the attesting witnesses witnessed the signing by the testator of the
will and all its pages, and that the said witnesses also signed the will and
every page thereof in the presence of the testator and of one another.
It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. Attestation
and subscription differ in meaning. Attestation is the act of sense, while

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

( The Court suggested in Caneda v. Court of Appeals (G.R. No. 103554,

May 28, 1993, 222 SCRA 781): the rule, as it now stands, is that omission
which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will
being assailed.

However, those omissions which cannot be supplied except by evidence

aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.
The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Art. 809. This
requirement aims at safeguarding the will against possible interpolation or
omission of one or some of its pages and thus preventing any increase or
decrease in the pages. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. In this case,
however, there could have been no substantial compliance with the
requirements under Art. 805 of the Civil Code since there is no statement
in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will. There was an incomplete attempt to
comply with this requisite, a space having been allotted for the insertion
of the number of pages in the attestation clause. Yet the blank was never
filled in. )
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CASE DIGEST: AJERO V. CA (236 SCRA 488)

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Ajero
236 SCRA 488

v.

CA

FACTS:
The holographic will
of
Annie
San
was
submitted
for
probate.
Private respondent opposed the petition on the grounds that: neither the testaments
body nor the signature therein was in decedents handwriting; it contained
alterations and corrections which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue influence.
The petition was also contested by Dr. Ajero with respect to the disposition in the will
of a house and lot. He claimed that said property could not be conveyed
bydecedent in its entirety, as she was not its sole owner.

However, the trial court still admitted the decedents holographic will to probate.
The trial court held that since it must decide only the question of the identity of the
will, its due execution and the testamentary capacity of the testatrix, it finds no
reason for the disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
On appeal, the CA reversed said Decision holding that the decedent did not comply
with Articles 313 and 314 of the NCC. It found that certain dispositions in the will
were either unsigned or undated, or signed by not dated. It also found that the
erasures, alterations and cancellations made had not been authenticated bydecedent.
ISSUE:
Whether the CA erred in holding that Articles 813 and 814 of the NCC were not
complies with.
HELD:
YES. A reading of Article 813 shows that its requirement affects the validity of
thedispositions contained in the holographic will, but not its probate. If the testator
fails to sign and date some of the dispositions, the result is that
these dispositionscannot be effectuated. Such failure, however, does not render the
whole
testament
void.
Likewise, a holographic will can still be admitted to probate notwithstanding noncompliance with the provisions of Article 814.
Unless the authenticated alterations, cancellations or insertions were made on the
date of the holographic will or on testators signature, their presence does not
invalidate the will itself. The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that he requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Article 813 and 814) separate
from that which provides for the necessary conditions for the validity of
theholographic will (Article 810).
This separation and distinction adds support to the interpretation that only
therequirements of Article 810 of the NCC and not those found in Articles 813 and
814 are essential to the probate of a holographic will.

Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate
the grounds for disallowance of wills. These lists are exclusive; no other grounds can
serve to disallow a will.
In a petition to admit a holographic will, the only issues to be resolved are:
1.whether the instrument submitted is, indeed, the decedents last will and
testament;
2.whether said will was executed in accordance with the formalities prescribed by
law;
3.whether the decedent had the necessary testamentary capacity at the time the will
was executed; and
4.whether the execution of the will and its signing were the voluntary acts of
thedecedent.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud; accordingly, laws on this subject should be interpreted to
attain these primordial ends.
In the case of holographic wills, what assures authenticity is the requirement that
they be totally authographic or handwritten by the testator himself. Failure to strictly
observe other formalities will no result in the disallowance of a holographicwill that
is unquestionable handwritten by the testator.

Garcia v. Vasquez Digest

Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)
Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language
she knew an spoke. The other will was executed in December 1960 consisting of only one
page, and written in Tagalog. The witnesses to the 1960 will declared that the will was
first read 'silently' by the testatrix before signing it. The probate court admitted the will.
2. The oppositors alleged that the as of December 1960, the eyesight of the deceased was
so poor and defective that she could not have read the provisions contrary to the
testimony of the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code
(NCC) should apply.If the testator is blind or incapable of reading, he must be apprised of
the contents of the will for him to be able to have the opportunityto object if the
provisions therein are not in accordance with his wishes.
The testimony of her opthalmologist established that notwithstanding an operation to
remove her cataract and being fitted with the lenses, this did not improve her vision. Her
vision remained mainly for viewing distant objects and not for reading. There was no
evidence that her vision improved at the time of the execution of the 2nd will. Hence, she
was incapable of reading her own will. The admission of the will to probate is therefor
erroneous.

DIGEST 2