SPECIAL PROCEEDINGS/Rule 75 1 of 18
1. SECOND DIVISION Testamentary be issued to Atty. Rogelio P. Nogales, the
G.R. No. 160530 November 20, 2007
CYNTHIA V. NITTSCHER, petitioner,
vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY. ROGELIO
P. NOGALES and THE REGIONAL TRIAL COURT OF MAKATI (Branch
59), respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated July 31, 2003 and
Resolution2 dated October 21, 2003 of the Court of Appeals in CA-
G.R. CV No. 55330, which affirmed the Order3 dated September 29,
1995 of the Regional Trial Court (RTC), Branch 59, Makati City, in SP
Proc. No. M-2330 for the probate of a will.
The facts are as follows.
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the
RTC of Makati City a petition for the probate of his holographic will
and for the issuance of letters testamentary to herein respondent
Atty. Rogelio P. Nogales.
On September 19, 1991, after hearing and with due notice to the
compulsory heirs, the probate court issued an order allowing the
said holographic will, thus:
WHEREFORE, premises considered, the Holographic Will of
the petitioner-testator Dr. Werner J. Nittscher executed
pursuant to the provision of the second paragraph of
Article 838 of the Civil Code of the Philippines on January
25, 1990 in Manila, Philippines, and proved in accordance
with the provision of Rule 76 of the Revised Rules of Court
is hereby allowed.
SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales
filed a petition for letters testamentary for the administration of the
estate of the deceased. Dr. Nittscher’s surviving spouse, herein
petitioner Cynthia V. Nittscher, moved for the dismissal of the said
petition. However, the court in its September 29, 1995 Order denied
petitioner’s motion to dismiss, and granted respondent’s petition for
the issuance of letters testamentary, to wit:
In view of all the foregoing, the motion to dismiss is
DENIED. The petition for the issuance of Letters
Testamentary, being in order, is GRANTED.
Section 4, Rule 78 of the Revised Rules of Court, provides
"when a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust and
gives a bond as required by these rules." In the case at bar,
petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law
Offices has been named executor under the Holographic
Will of Dr. Werner J. Nittscher. As prayed for, let Letters
executor named in the Will, without a bond.
SO ORDERED.5
Petitioner moved for reconsideration, but her motion was denied for
lack of merit. On May 9, 1996, Atty. Nogales was issued letters
testamentary and was sworn in as executor.
Petitioner appealed to the Court of Appeals alleging that
respondent’s petition for the issuance of letters testamentary
should have been dismissed outright as the RTC had no jurisdiction
over the subject matter and that she was denied due process.
The appellate court dismissed the appeal, thus:
WHEREFORE, the foregoing considered, the appeal is
hereby DISMISSED and the assailed Order is AFFIRMED in
toto. The court a quo is ordered to proceed with dispatch
in the proceedings below.
SO ORDERED.6
Petitioner’s motion for reconsideration of the aforequoted decision
was denied for lack of merit. Hence, the present petition anchored
on the following grounds:
I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT
DISMISSING OUTRIGHT THE PETITION FOR LETTERS …
TESTAMENTARY FILED BY ATTY. NOGALES WHEN,
OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED
CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO.
04-94 OF THIS HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER
COURT [HAS] NO JURISDICTION OVER THE SUBJECT
MATTER OF THE PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE
PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS
INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL
OF DR. NITTSCHER.
IV.
THE CA ERRED IN CONCLUDING THAT THE PETITIONER
WAS NOT DEPRIVED OF DUE PROCESS OF LAW BY THE
LOWER COURT.7
Petitioner contends that respondent’s petition for the issuance of
letters testamentary lacked a certification against forum-shopping.
She adds that the RTC has no jurisdiction over the subject matter of
this case because Dr. Nittscher was allegedly not a resident of the
Philippines; neither did he leave real properties in the country.
Petitioner claims that the properties listed for disposition in her

husband’s will actually belong to her. She insists she was denied due
process of law because she did not receive by personal service the
notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr. Nittscher did
reside and own real properties in Las Piñas, Metro Manila. He
stresses that petitioner was duly notified of the probate
proceedings. Respondent points out that petitioner even appeared
in court to oppose the petition for the issuance of letters
testamentary and that she also filed a motion to dismiss the said
petition. Respondent maintains that the petition for the issuance of
letters testamentary need not contain a certification against forum-
shopping as it is merely a continuation of the original proceeding for
the probate of the will.
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-918 and Administrative
Circular No. 04-949 of the Court require a certification against forum-
shopping for all initiatory pleadings filed in court. However, in this
case, the petition for the issuance of letters testamentary is not an
initiatory pleading, but a mere continuation of the original petition
for the probate of Dr. Nittscher’s will. Hence, respondent’s failure to
include a certification against forum-shopping in his petition for the
issuance of letters testamentary is not a ground for outright
dismissal of the said petition.
Anent the second issue, Section 1, Rule 73 of the Rules of Court
provides:
SECTION 1. Where estate of deceased persons settled. – If
the decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance (now
Regional Trial Court) in the province in which he resides
at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance (now Regional
Trial Court) of any province in which he had estate. …
(Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in their finding
that Dr. Nittscher was a resident of Las Piñas, Metro Manila at the
time of his death. Such factual finding, which we find supported by
evidence on record, should no longer be disturbed. Time and again
we have said that reviews on certiorari are limited to errors of law.
Unless there is a showing that the findings of the lower court are
totally devoid of support or are glaringly erroneous, this Court will
not analyze or weigh evidence all over again.10
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in
the RTC of Makati City, which then covered Las Piñas, Metro Manila,
the petition for the probate of his will and for the issuance of letters
testamentary to respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher
asked for the allowance of his own will. In this connection, Section 4,
Rule 76 of the Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally. – …
SPECIAL PROCEEDINGS/Rule 75 2 of 18
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher
had no child, and Dr. Nittscher’s children from his previous marriage
were all duly notified, by registered mail, of the probate
proceedings. Petitioner even appeared in court to oppose
respondent’s petition for the issuance of letters testamentary and
she also filed a motion to dismiss the said petition. She likewise filed
a motion for reconsideration of the issuance of the letters
testamentary and of the denial of her motion to dismiss. We are
convinced petitioner was accorded every opportunity to defend her
cause. Therefore, petitioner’s allegation that she was denied due
process in the probate proceedings is without basis.
As a final word, petitioner should realize that the allowance of her
husband’s will is conclusive only as to its due execution.11 The
authority of the probate court is limited to ascertaining whether the
testator, being of sound mind, freely executed the will in accordance
with the formalities prescribed by law.12 Thus, petitioner’s claim of
title to the properties forming part of her husband’s estate should
be settled in an ordinary action before the regular courts.
WHEREFORE, the petition is DENIED for lack of merit. The assailed
Decision dated July 31, 2003 and Resolution dated October 21, 2003
of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the
Order dated September 29, 1995 of the Regional Trial Court, Branch
59, Makati City, in SP Proc. No. M-2330 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
2. FIRST DIVISION
G.R. No. L-57848 June 19, 1982
RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,
vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of
the Court of First Instance of Rizal and BERNARDO S.
ASENETA, respondents.
MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent
Appellate Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang
and Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge of the
Court of First Instance of Rizal, Pasig, Branch XI, and Bernardo S.
Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila
Sanitarium Hospital at age 81. She left a holographic will, the
pertinent portions of which are quoted hereunder:
xxx xxx xxx

It is my will that all my real properties located in
Manila, Makati, Quezon City, Albay and Legaspi
City and all my personal properties shagllbe
inherited upon my death by Dra. Soledad L.
Maninang with whose family I have lived
continuously for around the last 30 years now.
Dra. Maninang and her husband Pamping have
been kind to me. ... I have found peace and
happiness with them even during the time when
my sisters were still alive and especially now
when I am now being troubled by my nephew
Bernardo and niece Salvacion. I am not
incompetent as Nonoy would like me to appear.
I know what is right and wrong. I can decide for
myself. I do not consider Nonoy as my adopted
son. He has made me do things against my will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for
probate of the Will of the decedent with the Court of First Instance-
Branch IV, Quezon City (Sp. Proc. No. Q-23304, hereinafter referred
to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the
adopted son, claims to be the sole heir of decedent Clemencia
Aseneta, instituted intestate proceedings with the Court of First
Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called
hereinafter the Intestate Case" for brevity).
On December 23, 1977, the Testate and Intestate Cases were
ordered consolidated before Branch XI, presided by respondent
Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate
Case on the ground that the holographic will was null and void
because he, as the only compulsory heir, was preterited and,
therefore, intestacy should ensue. In support of said Motion to
Dismiss, respondent Bernardo cited the cases of Neri vs. Akutin (72
Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs.
Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad
averred that it is still the rule that in a case for probate of a Will, the
Court's area of inquiry is limited to an examination of and resolution
on the extrinsic validity of the will; and that respondent Bernardo
was effectively disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the
Testate Case in this wise:
For reasons stated in the motion to dismiss filed
by petitioner Bernardo S. Aseneta which the
Court finds meritorious, the petition for probate
of will filed by Soledad L. Maninang and which
was docketed as Sp. Proc. No. Q-23304 is
DISMISSED, without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for
lack of merit and in the same Order appointed Bernardo as the
administrator of the intestate estate of the deceased Clemencia
Aseneta "considering that he is a forced heir of said deceased while
oppositor Soledad Maninang is not, and considering further that
SPECIAL PROCEEDINGS/Rule 75 3 of 18
Bernardo Aseneta has not been shown to be unfit to perform the
duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before
respondent Court of Appeals alleging that the lower Court exceeded
its jurisdiction in issuing the Orders of dismissal of the Testate Case
(September 8, 1980) and denial of reconsideration (December 19,
1980).
On April 28, 1981, respondent Court 3 denied certiorari and ruled
that the trial Judge's Order of dismissal was final in nature as it
finally disposed of the Testate Case and, therefore, appeal was the
proper remedy, which petitioners failed to avail of. Continuing, it
said that even granting that the lower Court committed errors in
issuing the questioned Orders, those are errors of judgment
reviewable only by appeal and not by Certiorari. 'Thus, this Petition
before us.
We find that the Court a quo a quo acted in excess of its jurisdiction
when it dismissed the Testate Case. Generally, the probate of a Will
is mandatory.
No will shall pass either real or personal property
unless it is proved and allowed in accordance
with the Rules of Court. 4
The law enjoins the probate of the Will and public policy requires it,
because unless the Will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property by Will
may be rendered nugatory. 5
Normally, the probate of a Will does not look into its intrinsic
validity.
... The authentication of a will decides no other
question than such as touch upon the capacity of
the testator and the compliance with those
requisites or solemnities which the law
prescribes for the validity of wills. It does not
determine nor even by implication prejudge the
validity or efficiency (sic) of the provisions, these
may be impugned as being vicious or null,
notwithstanding its authentication. The
que0stions relating to these points remain
entirely unaffected, and may be raised even
after the will has been authenticated .... 6
Opposition to the intrinsic validity or legality of
the provisions of the will cannot be entertained
in Probate proceeding because its only purpose
is merely to determine if the will has been
executed in accordance with the requirements
of the law. 7
Respondent Bernardo, however, relies on the pronouncement
in Nuguid vs. Nuguid 8, reading:
In a proceeding for the probate of a will, the
Court's area of inquiry is limited to an
examination of, and resolution on, the extrinsic
validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the

compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the
will normally comes only after the court has
declared that the will has been duly
authenticated. However, where practical
considerations demand that the intrinsic validity
of the will be passed upon, even before it is
probated, the Court should meet that
issue. (Emphasis supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
The trial court acted correctly in passing upon
the will's intrinsic validity even before its formal
validity had been established. The probate of a
will might become an Idle ceremony if on its face
it appears to be intrinsically void. Where
practical considerations demand that the
intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the
issue.
The Nuguid and the Balanay cases provide the exception rather than
the rule. The intrinsic validity of the Wills in those cases was passed
upon even before probate because "practical considerations" so
demanded. Moreover, for the parties in the Nuguid case, the "meat
of the controversy" was the intrinsic validity of the Will; in fact, the
parties in that case "shunted aside the question of whether or not
the Will should be allowed probate." Not so in the case before us
now where the probate of the Will is insisted on by petitioners and a
resolution on the extrinsic validity of the Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was
intrinsically invalid as it completely preterited the parents of the
testator. In the instant case, a crucial issue that calls for resolution is
whether under the terms of the decedent's Will, private respondent
had been preterited or disinherited, and if the latter, whether it was
a valid disinheritance. Preterition and disinheritance are two diverse
concepts.
... Preterition "consists in the omission in the
testator's will of the forced heirs or anyone of
them, either because they are not mentioned
therein, or, though mentioned, they are neither
instituted as heirs nor are expressly
disinherited." (Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heirs of his
share in the legitimate for a cause authorized by
law." (Justice J.B.L. Reyes and R.C. Puno, "An
Outline of Philippine Civil Law", 1956 ed., Vol. III,
p. 8, citing cases) Disinheritance is always
"voluntary", preterition upon the other hand, is
presumed to be "involuntary" (Sanchez Roman,
Estudios de Derecho Civil 2nd edition, Volume
2.o p. 1131). 10
The effects of preterition and disinheritance are also totally
different.
... The effects flowing from preterition are totally
different from those of disinheritance.
Pretention under Article 854 of the New Civil
SPECIAL PROCEEDINGS/Rule 75 4 of 18
Code shall annul the institution of heir. This
annulment is in toto, unless in the wail there are,
in addition, testamentary dispositions in the
form of devises or legacies. In ineffective
disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the
institution of heirs", but only "insofar as it may
prejudice the person disinherited", which last
phrase was omitted in the case of preterition (III
Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that
portion of the estate of which the disinherited
heirs have been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of
that controversial issue has not been thoroughly considered. We
gather from the assailed Order of the trial Court that its conclusion
was that respondent Bernardo has been preterited We are of
opinion, however, that from the face of the Will, that conclusion is
not indubitable.
As held in the case of Vda. de Precilla vs. Narciso 12
... it is as important a matter of public interest
that a purported will is not denied legalization
on dubious grounds. Otherwise, the very
institution of testamentary succession will be
shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view
of our finding that respondent Judge had acted in excess of his
jurisdiction in dismissing the Testate Case, certiorari is a proper
remedy. An act done by a Probate Court in excess of its jurisdiction
may be corrected by Certiorari. 13 And even assuming the existence
of the remedy of appeal, we harken to the rule that in the broader
interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate
relief.
WHEREFORE, the Decision in question is set aside and the Orders of
the Court of First Instance-Branch XI, Rizal, dated September 8, 1980
and December 19, 1980, are nullified. Special Proceeding No. Q-
23304 is hereby remanded to said Court of First Instance-Branch XI.
Rizal, therein to be reinstated and consolidated with Special
Proceeding No. 8569 for further proceedings.
No pronouncement as to costs.
SO ORDERED.
3. SECOND DIVISION
G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO
ALUAD, and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION

CARPIO MORALES, J.:
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido
Aluad were raised by the childless spouses Matilde Aluad (Matilde)
and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676,
677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his
wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled
"Deed of Donation of Real Property Inter Vivos"2(Deed of Donation)
in favor of petitioners’ mother Maria3 covering all the six lots which
Matilde inherited from her husband Crispin. The Deed of Donation
provided:
That, for and in consideration of the love and affection of the
DONOR [Matilde] for the DONEE [Maria], the latter being adopted
and hav[ing] been brought up by the former the DONOR, by these
presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon the
death of the DONOR, but in the event that the DONEE should die
before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect; Provided, however,
that anytime during the lifetime of the DONOR or anyone of them
who should survive, they could use[,] encumber or even dispose of
any or even all of the parcels of landherein donated.4 (Emphasis and
underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos.
674 and 676 were issued in Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a
Deed of Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will
and testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria,
and her "remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September
24 of the same year.7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the
Regional Trial Court (RTC) of Roxas City a Complaint,8 for declaration
and recovery of ownership and possession of Lot Nos. 674 and 676,
and damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-
described until January 1991 when defendant entered and
possessed the two (2) parcels of land claiming as the adopted son of
Crispin Aluad who refused to give back possession until Matilde
Aluad died in [1994] and then retained the possession thereof up to
and until the present time, thus, depriving the plaintiffs of the
enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by
inheritance by right of representation from their deceased mother,
Maria Aluad who is the sole and only daughter of Matilde Aluad[.] 9
To the complaint respondent alleged in his Answer.10
SPECIAL PROCEEDINGS/Rule 75 5 of 18
That Lot 674 is owned by the defendant as this lot was adjudicated
to him in the Last Will and Testament of Matilde Aluad x x x while
Lot 676 was purchased by him from Matilde Aluad. These two lots
are in his possession as true owners thereof.11 (Underscoring
supplied)
Petitioners later filed a Motion for Leave to Amend Complaint
Already Filed to Conform to Evidence12 to which it annexed an
Amended Complaint13 which cited the donation of the six lots via
Deed of Donation in favor of their mother Maria. Branch 15 of the
RTC granted the motion and admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that
the Deed of Donation is forged and falsified and petitioners’ change
of theory showed that "said document was not existing at the time
they filed their complaint and was concocted by them after realizing
that their false claim that their mother was the only daughter of
Matild[e] Aluad cannot in anyway be established by them";16 and
that if ever said document does exist, the same was already revoked
by Matilde "when [she] exercised all acts of dominion over said
properties until she sold Lot 676 to defendant and until her death
with respect to the other lots without any opposition from Maria
Aluad."17
The trial court, by Decision18 of September 20, 1996, held that
Matilde could not have transmitted any right over Lot
Nos. 674 and 676 to respondent, she having previously alienated
them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots
Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject
lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income
from subject Lot 676, a year from 1991 up to the time said lot is
delivered to the plaintiffs, together with the interest thereof at the
legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from
the subject Lot No. 674, a year from 1991 up to the time said lot is
delivered to the plaintiffs, plus legal interest thereof at the legal rate
until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners’ motion, the trial court directed the issuance of a writ
of execution pending appeal.20 Possession of the subject lots
appears to have in fact been taken by petitioners.

By Decision21 of August 10, 2006, the Court of Appeals reversed the
trial court’s decision, it holding that the Deed of Donation was
actually a donation mortis causa, not inter vivos, and as such it had
to, but did not, comply with the formalities of a will. Thus, it found
that the Deed of Donation was witnessed by only two witnesses and
had no attestation clause which is not in accordance with Article 805
of the Civil Code, reading:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator’s name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will shall, also sign, as aforesaid,
each and every page thereof, except the last on the left margin and
all the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that that testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator, and of one
another.
If the attestation clause is in a language not known to the witnesses,
it shall be interpreted to them.
While the appellate court declared respondent as the rightful owner
of Lot No. 676, it did not so declare with respect to Lot No. 674, as
Matilde’s last will and testament had not yet been probated. Thus
the Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same
is hereby GRANTED and the Decision of the Regional Trial Court of
Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-
6686 for declaration of ownership, recovery of ownership and
possession, and damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as
the lawful owner of Lot [No.] 676 of the Pilar Cadastre.
Accordingly, plaintiffs-appellees are directed to return the
possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to
defendant-appellant as attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been
denied,24 petitioners filed the present Petition for
Review,25contending that the Court of Appeals erred
I could only have referred to the donor Matilde. Petitioners
SPECIAL PROCEEDINGS/Rule 75 6 of 18
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW
(RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF
DONATION INTER VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS IN
FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER
OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE
EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE
SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL
OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT
RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2,
RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO
RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to
petitioners’ mother one of mortis causa, it having the following
characteristics:
(1) It conveys no title or ownership to the transferee before the
death of the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;
(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will, ad nutum; but revocability may
be provided for indirectly by means of a reserved power in the
donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive
the transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become
effective upon the death of the DONOR" admits of no other
interpretation than to mean that Matilde did not intend to transfer
the ownership of the six lots to petitioners’ mother during her
(Matilde’s) lifetime.28
The statement in the Deed of Donation reading "anytime during the
lifetime of the DONOR or anyone of them who should survive, they
could use, encumber or even dispose of any or even all the parcels
of land herein donated"29 means that Matilde retained ownership
of the lots and reserved in her the right to dispose them. For the
right to dispose of a thing without other limitations than those
established by law is an attribute of ownership.30 The phrase in the
Deed of Donation "or anyone of them who should survive" is of
course out of sync. For the Deed of Donation clearly stated that it
would take effect upon the death of the donor, hence, said phrase
themselves concede that such phrase does not refer to the donee,
thus:

x x x [I]t is well to point out that the last provision (sentence) in the
disputed paragraph should only refer to Matilde Aluad, the donor,
because she was the only surviving spouse at the time the donation
was executed on 14 November 1981, as her husband – Crispin Aluad
[–] had long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos,
reasoned:
x x x The donation in question is subject to a resolutory term or
period when the donor provides in the aforequoted provisions, "but
in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further
force and effect". When the donor provides that should the
"DONEE" xxx die before the DONOR, the present donation shall be
deemed rescinded and [of] no further force and effect" the logical
construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be
"deemed rescinded and [of] no further force and effect" upon the
arrival of a resolutory term or period, i.e., the death of the donee
which shall occur before that of the donor. Understandably, the
arrival of this resolutory term or period cannot rescind and render of
no further force and effect a donation which has never become
effective, because, certainly what donation is there to be rescinded
and rendered of no further force and effect upon the arrival of said
resolutory term or period if there was no donation which was
already effective at the time when the donee died? 32 (Underscoring
supplied)
A similar ratio in a case had been brushed aside by this Court,
however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case
petitioners [donee] die ahead of [donor] Cabatingan is a resolutory
condition that confirms the nature of the donation as inter vivos.
Petitioners’ arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation
shall be rescinded in case [donees] the petitioners predecease [the
donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of
the decisive characteristics of a donation mortis causa is that the
transfer should be considered void if the donor should survive the
donee. This is exactly what Cabatingan provided for in her
donations. If she really intended that the donation should take
effect during her lifetime and that the ownership of the properties
donated to the donee or independently of, and not by reason of her
death, she would not have expressed such proviso in the subject
deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis
causa is fortified by Matilde’s acts of possession as she continued to
pay the taxes for the said properties which remained under her
name; appropriated the produce; and applied for free patents for
which OCTs were issued under her name."35
The donation being then mortis causa, the formalities of a will
should have been observed36 but they were not, as it was witnessed
by only two, not three or more witnesses following Article 805 of the
Civil Code.37
SPECIAL PROCEEDINGS/Rule 75 7 of 18
Further, the witnesses did not even sign the attestation clause38 the
execution of which clause is a requirement separate from the
subscription of the will and the affixing of signatures on the left-
hand margins of the pages of the will. So the Court has emphasized:
x x x Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will from the requisite
that the will be "attested and subscribed by [the instrumental
witnesses]. The respective intents behind these two classes of
signature[s] are distinct from each other. The signatures on the left-
hand corner of every page signify, among others, that the witnesses
are aware that the page they are signing forms part of the will. On
the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate
these witnesses’ undertakings in the clause, since the signatures
that do appear on the page were directed towards a wholly different
avowal.
x x x It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the
will and every page thereof; and that they witnessed and signed the
will and all the pages thereof in the presence of the testator and of
one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the
attestation clause.39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the
notary public,40 which is not in accordance with the requirement of
Article 806 of the Civil Code that every will must be acknowledged
before a notary public by the testator and the witnesses.
More. The requirement that all the pages of the will must be
numbered correlatively in letters placed on the upper part of each
page was not also followed.41
The Deed of Donation which is, as already discussed, one of mortis
causa, not having followed the formalities of a will, it is void and
transmitted no right to petitioners’ mother. But even assuming
arguendo that the formalities were observed, since it was not
probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent
by her last will and testament, subject of course to the qualification
that her (Matilde’s) will must be probated. With respect to Lot No.
676, the same had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of
Lot No. 674 in favor of their mother is indeed mortis causa, hence,
Matilde could devise it to respondent, the lot should nevertheless
have been awarded to them because they had acquired it by
acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good
faith and in the concept of an owner since 1978.43
Petitioners failed to raise the issue of acquisitive prescription before
the lower courts, however, they having laid their claim on the basis
of inheritance from their mother. As a general rule, points of law,

theories, and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal.44 For a contrary rule
would be unfair to the adverse party who would have no
opportunity to present further evidence material to the new theory,
which it could have done had it been aware of it at the time of the
hearing before the trial court.45
WHEREFORE, the petition is DENIED.
SO ORDERED.
4. SECOND DIVISION
G.R. Nos. L-63253-54 April 27, 1989
PABLO RALLA, petitioner,
vs.
HON. ROMULO P. UNTALAN, HON. DOMINGO CORONEL REYES,
AND LEONIE RALLA, PETER RALLA AND MARINELLA
RALLA, respondents.
Rafael Triunfante for the Heirs of Pablo Ralla.
Ruben R. Basa for respondents.
SARMIENTO, J.:
This petition seeks the nullification of the Order of respondent Judge
Romulo P. Untalan, 1 dated July 16,1981, excluding from the
probate proceedings sixty-three parcels of land, as well as the
Orders issued by respondent Judge Domingo Coronel
Reyes, 2 denying the petitioner's motions for reconsideration of the
same Order of Judge Untalan dated July 16, 1981.
The petition's beginnings are traced to January 27, 1959, when
Rosendo Ralla, a widower, filed a petition for the probate of his own
will in the then Court of First Instance (now Regional Trial Court) of
Albay, which was docketed as Special Proceedings No. 564. In his will
he left his entire estate to his son, Pablo (the petitioner herein who,
upon his death during the pendency of this petition, was substituted
by his heirs), leaving nothing to his other son, Pedro.
In the same year, Pedro Ralla filed an action for the partition of the
estate of their mother, Paz Escarella; this was docketed as Civil Case
No. 2023.
In the course of the hearing of the probate case (Special Proceedings
No. 564), Pablo Ralla filed a motion to dismiss the petition for
probate on the ground that he was no longer interested in the
allowance of the will of his late father, Rosendo Ralla, for its probate
would no longer be beneficial and advantageous to him. This motion
was denied, and the denial was denied by the Court of Appeals. (The
latter court agreed with the lower court's conclusion that, indeed,
the petitioner stood to gain if the testate proceedings were to be
dismissed because then he would not be compelled to submit for
inclusion in the inventory of the estate of Rosendo Ralla 149 parcels
of land from which he alone had been collecting rentals and
receiving income, to the exclusion and prejudice of his brother,
Pedro Ralla, who was being deprived of his successional rights over
the said properties.) The denial of this motion to dismiss was
likewise affirmed by this Court (in G.R. No. L-26253). 3 On the
scheduled hearing on November 3, 1966, the petitioner reiterated
SPECIAL PROCEEDINGS/Rule 75 8 of 18
his lack of interest in the probate of the subject will. Consequently,
the court, through Judge Perfecto Quicho, declared Pedro and Pablo
Ralla the only heirs of Rosendo Ralla who should share equally upon
the division of the latter's estate, and thereupon converted the
testate proceedings into one of intestacy.
Meanwhile, the brothers agreed to compromise in the partition case
(Civil Case No. 2023). On December 18, 1967, they entered into a
project of partition whereby sixty-three parcels of land, apparently
forming the estate of their deceased mother, Paz Escarella, were
amicably divided between the two of them. This project of partition
was approved on December 19,1967 by Judge Ezekiel Grageda.
Eleven years later, or on February 28, 1978, Joaquin Chancoco,
brother-in- law of the petitioner (Pablo) filed a petition, docketed as
Special Proceedings No. 1106, for the probate of the same will of
Rosendo Ralla on the ground that the decedent owed him
P5,000.00. Pablo Ralla then filed a manifestation stating that he had
no objections to the probate; thereafter, he filed a "Motion to
Intervene as Petitioner for the Probate of the Will." This motion was
heard ex parte and granted despite the written opposition of the
heirs of Pedro Ralla. Likewise, the petition for probate was granted;
Teodorico Almine, son-in-law of the petitioner, was appointed
special administrator, over and above the objection of the heirs of
Pedro Ralla. However, in taking possession of the properties
belonging to the estate of Rosendo Ralla, Teodorico Almine also
took possession of the sixty-three parcels of land covered by the
project of partition mentioned earlier. Consequently, the heirs of
Pedro Ralla (the private respondents herein) moved to exclude from
the estate of Rosendo Ralla the aforesaid parcels of land.
In an Omnibus order dated August 3, 1979, 4 respondent Judge
Romulo P. Untalan ruled, inter alia, that the sixty-three parcels of
land should be included in the proceedings for the settlement of the
estate of Rosendo Ralla and that said proceedings (both Special
Proceedings No. 564 and Special Proceedings No. 1106, which were
ordered consolidated by this Court) should proceed as probate
proceedings.
About two years later, or on June 11, 1981, the private respondents
filed a "Petition To Submit Anew For Consideration Of The Court The
Exclusion Of 67 (sic) Parcels of Land Subject Of The Project Of
Partition In Civil Case No. 2023." 5 In his Order of July 16,1981, Judge
Untalan reconsidered his earlier Order, to wit:
Premises considered, Order is hereby issued
reconsidering the Omnibus Order of this Court
dated August 3,1979, more particularly
paragraph 3 of the dispositive portion thereof.
The Project of Partition should, therefore, be
respected and upheld. Hence, the sixty-three
(63) parcels referred to therein should be
excluded from the probate proceedings and,
likewise from the administration of Special
Administrator Teodorico Almine, Jr.
SO ORDERED. 6
Thereafter, the petitioner filed a motion for reconsideration of the
foregoing order but the same was denied 7 by respondent Judge
Domingo Coronel Reyes, to whose sala Special Proceedings No. 564
and No. 1 1 06 were apparently transferred. Still, a second motion
for reconsideration was filed; the same, however, was also denied. 8

In assailing the aforesaid Order of July 16, 1981, the following
arguments are raised in the present special civil action for certiorari.
The first argument is stated as follows:
... The extrajudicial partition of the 63 parcels
made after the filing of the petition for the
probate of the Will, and before said Will was
probated, is a NULLITY, considering that as
already decided by this Court in the case of
Ernesto M. Guevara, vs. Rosario Guevara et al.,
Vol. 74 Phil. Reports, there can be no valid
partition among the heirs till after the Will had
been probated. ... 9
The above argument is obviously flawed and misleading for the
simple reason that the aforementioned partition was made in the
civil case for partition of the estate of Paz Escarella, which is distinct
from, and independent of, the special proceedings for the probate
of the will of Rosendo Ralla.
Verily, the rule is that there can be no valid partition among the
heirs till after the will has been probated. This, of course,
presupposes that the properties to be partitioned are the same
properties embraced in the win. Thus the rule invoked is
inapplicable in this instance where there are two separate cases
(Civil Case No. 2023 for partition, and Special Proceedings No. 564
originally for the probate of a will), each involving the estate of a
different person (Paz Escarella and Rosendo Ralla, respectively)
comprising dissimilar properties.
In his second and third arguments, 10 the petitioner claims that the
Order of August 3, 1979 mentioned earlier could no longer be validly
reversed by the court two years after it was issued. Thus, it is alleged
that by flip-flopping, Judge Untalan committed a grave abuse of
discretion.
An examination of the August 3, 1979 Order would reveal that the
same resolved a number of divergent issues (ten as
enumerated) 11 springing from four separate special
proceedings,12 all of which were pending in Branch I of the then
Court of First Instance of Albay; accordingly, there are at least
nine 13 specific directives contained therein. However, a distinction
must be made between those directives that partake of final orders
and the other directives that are in the nature of inter-locutory
orders.
Two closely related orders are the following quoted portions of the
said August 3, 1979 Order of respondent Judge Untalan:
xxx xxx xxx
2. The 149 parcels referred to in our elucidation
on issue No. 2 as well as the 63 lots also
mentioned therein all of which may be summed
up to 212 parcels, except those already validly
disposed, conveyed, or transferred to third
persons, should be submitted, at least
provisionally, to the probate or testate
proceedings. Hence, the Motion to exclusion the
149 parcels filed on June 2, 1979, by petitioner
intervenor Pablo Ralla thru counsel in Special
Proceeding 1106 and the motion for exclusion
SPECIAL PROCEEDINGS/Rule 75 9 of 18
filed by the heirs of Pedro Ralla thru counsel in
Special Proceedings 564 and 1106 are
hereby Denied; (Emphasis supplied.)
3. The Project of partition, for purposes of these
proceedings, is hereby stripped of its judicial
recognition; 14
xxx xxx xxx
As regards the abovequoted paragraph 2, this Court finds that the
same is interlocutory in character because it did not decide the
action with finality and left substantial proceedings still to be
had.15 The foregoing order of inclusion of the subject parcels of land
was a mere incident that arose in the settlement of the estate of
Rosendo Ralla. It is elementary that interlocutory orders, prior to the
rendition of the final judgment, are, at any time, subject to such
corrections or amendments as the court may deem proper. Thus, in
issuing the questioned Order dated July 16,1981, which reversed the
aforementioned interlocutory order and upheld the project of
partition, respondent Judge Untalan acted well within his
jurisdiction and without grave abuse of discretion.
There is, however, a more important reason why we do not find any
grave abuse of discretion in the issuance of the questioned Order
dated July 16,1981. Consider the following undisputed facts: the
properties involved in the present petition were the subject of the
project of partition signed by both the petitioner, Pablo Ralla, and
Pedro Ralla in Civil Case No. 2023; the lower court approved the said
project of partition on December 19, 1967; subsequently, Pablo and
Pedro Ralla jointly manifested that they had already received "the
ownership and possession of the respective parcels of land
adjudicated to them in the said project of partition," 16 and upon
their motion Judge Ezekiel Grageda declared the partition case
closed and terminated in its Order of December 29, 1967; there was
no appeal made from this decision within the reglementary period
to do so, consequently, it attained finality.
Furthermore, the Court had occasion to rule that
Where a partition had not only been approved
and thus become a judgment of the court, but
distribution of the estate in pursuance of such
partition had fully been carried out, and the
heirs had received the property assigned to
them, they are precluded from subsequently
attacking its validity or any part of it. 17
Likewise:
Where a piece of land has been included in a
partition, and there is no allegation that the
inclusion was effected through improper means
or without the petitioners' 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
proper disposition according to the tenor of the
partition . . . They can not attack the partition
collaterally, as they are trying to do in this
case. 18 (Emphasis supplied.)

Based on the foregoing pronouncements, the Order of August 3,
1979 setting aside the project of Partition was clearly erroneous.
Realizing this and the fact that it was not yet too late for him to
correct his mistake, respondent Judge Untalan issued the
questioned Order of July 16, 1981.
In fine, the partition in Civil Case No. 2023 is valid and binding upon
the petitioner and Pedro Ralla, as well as upon their heirs, especially
as this was accompanied by delivery of possession to them of their
respective shares in the inheritance from their mother, the late Paz
Escarella. They are duty bound to respect the division agreed upon
by them and embodied in the document of partition.
Thus, the petitioner could no longer question the exclusion of the
lands subject of the partition from the proceedings for the
settlement of the estate of Rosendo Ralla. Could it be that the
petitioner's keen interest in including these lands in the estate
proceedings is directly related to the fact that his son-in-law is the
administrator of the said estate of Rosendo Ralla?
WHEREFORE, the petition is hereby DISMISSED.
Costs against the petitioner.
SO ORDERED.
5. EN BANC
G.R. No. L-23638 October 12, 1967
DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA
REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
----------------------------------------
G.R. No. L-23662 October 12, 1967
MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA
REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have
petitioned for a review of the decision of the Court of Appeals (in
CA-G. R. No. 31221-R) affirming that of the Court of First Instance of
Bulacan, in Special Proceeding No. 831 of said Court, admitting to
probate the alleged last will and testament of the deceased, and
overruling the opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela
Dimagiba, now respondent, submitted to the Court of First Instance
a petition for the probate of the purported will of the late Benedicta
de los Reyes, executed on October 22, 1930, and annexed to the
petition. The will instituted the petitioner as the sole heir of the
SPECIAL PROCEEDINGS/Rule 75 10 of 18
estate of the deceased. The petition was set for hearing, and in due
time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one
month later, Mariano, Cesar, Leonor and Paciencia, all surnamed
Reyes, all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix, estoppel
by laches of the proponent and revocation of the will by two deeds
of conveyance of the major portion of the estate made by the
testatrix in favor of the proponent in 1943 and 1944, but which
conveyances were finally set aside by this Supreme Court in a
decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618
and L-5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by
decision of June 20, 1958, found that the will was genuine and
properly executed; but deferred resolution on the questions of
estoppel and revocation "until such time when we shall pass upon
the intrinsic validity of the provisions of the will or when the
question of adjudication of the properties is opportunely
presented."
Oppositors Fernandez and Reyes petitioned for reconsideration,
and/or new trial, insisting that the issues of estoppel and revocation
be considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the
probate of the will, but "reserving unto the parties the right to raise
the issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo
Cruz as administrator for the sole purpose of submitting an
inventory of the estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue
whether the execution by the testatrix of deeds of sale of the larger
portion of her estate in favor of the testamentary heir, made in 1943
and 1944, subsequent to the execution of her 1930 testament, had
revoked the latter under Article 957(2) of the 1950 Civil Code (Art.
869 of the Civil Code of 1889), the trial Court resolved against the
oppositors and held the will of the late Benedicta de los Reyes
"unaffected and unrevoked by the deeds of sale." Whereupon, the
oppositors elevated the case to the Court of Appeals.
The appellate Court held that the decree of June 20, 1958, admitting
the will to probate, had become final for lack of opportune appeal;
that the same was appealable independently of the issue of implied
revocation; that contrary to the claim of oppositors-appellants,
there had been no legal revocation by the execution of the 1943 and
1944 deeds of sale, because the latter had been made in favor of the
legatee herself, and affirmed the decision of the Court of First
Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main
issues: (a) whether or not the decree of the Court of First Instance
allowing the will to probate had become final for lack of appeal; (b)
whether or not the order of the Court of origin dated July 27, 1959,
overruling the estoppel invoked by oppositors-appellants had
likewise become final; and (c) whether or not the 1930 will of
Benedicta de los Reyes had been impliedly revoked by her execution
of deeds of conveyance in favor of the proponent on March 26, 1943
and April 3, 1944.
 SPECIAL PROCEEDINGS/Rule 75 11 of 18
As to the first point, oppositors-appellants contend that the order (1) . . . .
allowing the will to probate should be considered interlocutory,
because it fails to resolve the issues of estoppel and revocation (2) If the testator by any title or for any cause alienates the
propounded in their opposition. We agree with the Court of Appeals thing bequeathed or any part thereof, it being understood
that the appellant's stand is untenable. It is elementary that a that in the latter case the legacy or devise shall be without
probate decree finally and definitively settles all questions effect only with respect to the part thus alienated. If after
concerning capacity of the testator and the proper execution and the alienation the thing should again belong to the
witnessing of his last will and testament, irrespective of whether its testator, even if it be by reason of nullity of the contract,
provisions are valid and enforceable or otherwise. (Montañano vs. the legacy or devise shall not thereafter be valid, unless
Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. the reacquisition shall have been effected by virtue of the
Crisostomo, 89 Phil. 710). As such, the probate order is final and exercise of the right of repurchase;
appealable; and it is so recognized by express provisions of Section 1
of Rule 109, that specifically prescribes that "any interested person
xxx xxx xxx
may appeal in special proceedings from an order or judgment . . .
where such order or judgment: (a) allows or disallows a will."
It is well to note that, unlike in the French and Italian Codes, the
basis of the quoted provision is a presumed change of intention on
Appellants argue that they were entitled to await the trial Court's
the part of the testator. As pointed out by Manresa in his
resolution on the other grounds of their opposition before taking an
Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p.
appeal, as otherwise there would be a multiplicity of recourses to
743) —
the higher Courts. This contention is without weight, since Rule 109,
section 1, expressly enumerates six different instances when appeal
may be taken in special proceedings. Este caso se funda en la presunta voluntad del testador. Si
este, despues de legar, se desprende de la cosa por titulo
lucrativo u oneroso, hace desaparecer su derecho sobra
There being no controversy that the probate decree of the Court
ella, dando lugar a la presuncion de que ha cambiado de
below was not appealed on time, the same had become final and
voluntad, y no quiere que el legado se cumpla. Mas para
conclusive. Hence, the appellate courts may no longer revoke said
que pueda presumirse esa voluntad, es necesario que
decree nor review the evidence upon which it is made to rest. Thus,
medien actos del testador que la indiquen. Si la perdida
the appeal belatedly lodged against the decree was correctly
del derecho sobre la cosa ha sido independiente de la
dismissed.
voluntad del testador, el legado podraquedar sin efecto,
mas no en virtud del numero 2 del articulo 869, que exige
The alleged revocation implied from the execution of the deeds of siempre actos voluntarios de enajenacion por parte del
conveyance in favor of the testamentary heir is plainly irrelevant to mismo testador.
and separate from the question of whether the testament was duly
executed. For one, if the will is not entitled to probate, or its probate
As observed by the Court of Appeals, the existence of any such
is denied, all questions of revocation become superfluous in law,
change or departure from the original intent of the testatrix,
there is no such will and hence there would be nothing to revoke.
expressed in her 1930 testament, is rendered doubtful by the
Then, again, the revocation invoked by the oppositors-appellants is
circumstance that the subsequent alienations in 1943 and 1944
not an express one, but merely implied from subsequent acts of the
were executed in favor of the legatee herself, appellee Dimagiba. In
testatrix allegedly evidencing an abandonment of the original
fact, as found by the Court of Appeals in its decision annulling these
intention to bequeath or devise the properties concerned. As such,
conveyances (affirmed in that point by this Supreme Court in Reyes
the revocation would not affect the will itself, but merely the
vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated
particular devise or legacy. Only the total and absolute revocation
on July 31, 1954), "no consideration whatever was paid by
can preclude probate of the revoked testament (Trillana vs.
respondent Dimagiba" on account of the transfers, thereby
Crisostomo, supra.).
rendering it even more doubtful whether in conveying the property
to her legatee, the testatrix merely intended to comply in advance
As to the issue of estoppel, we have already ruled in Guevara vs. with what she had ordained in her testament, rather than an
Guevara, 98 Phil. 249, that the presentation and probate of a will are alteration or departure therefrom.1 Revocation being an exception,
requirements of public policy, being primarily designed to protect we believe, with the Courts below, that in the circumstances of the
the testator's, expressed wishes, which are entitled to respect as a particular case, Article 957 of the Civil Code of the Philippines, does
consequence of the decedent's ownership and right of disposition not apply to the case at bar.
within legal limits. Evidence of it is the duty imposed on a custodian
of a will to deliver the same to the Court, and the fine and
Not only that, but even if it were applicable, the annulment of the
imprisonment prescribed for its violation (Revised Rule 75). It would
conveyances would not necessarily result in the revocation of the
be a non sequitur to allow public policy to be evaded on the pretext
legacies, if we bear in mind that the findings made in the decision
of estoppel. Whether or not the order overruling the allegation of
decreeing the annulment of the subsequent 1943 and 1944 deeds of
estoppel is still appealable or not, the defense is patently
sale were also that
unmeritorious and the Court of Appeals correctly so ruled.

it was the moral influence, originating from their

The last issue, that of revocation, is predicated on paragraph 2 of
confidential relationship, which was the only cause for the
Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889),
execution of Exhs. A and B (the 1943 and 1944
which recites:
conveyances). (Decision, L-5618 and L-5620).

Art. 957. The legacy or devise shall be without effect:


If the annulment was due to undue influence, as the quoted passage
implies, then the transferor was not expressing her own free will and
intent in making the conveyances. Hence, it can not be concluded,
either, that such conveyances established a decision on her part to
abandon the original legacy.
True it is that the legal provision quoted prescribes that the recovery
of the alienated property "even if it be by reason of the nullity of the
contract" does not revive the legacy; but as pointed out by Scaevola
(Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the
contract" can not be taken in an absolute sense.2 Certainly, it could
not be maintained, for example, that if a testator's subsequent
alienation were avoided because the testator was mentally
deranged at the time, the revocatory effect ordained by the article
should still ensue. And the same thing could be said if the alienation
(posterior to the will) were avoided on account of physical or mental
duress. Yet, an alienation through undue influence in no way differs
from one made through violence or intimidation. In either case, the
transferor is not expressing his real intent,3 and it can not be held
that there was in fact an alienation that could produce a revocation
of the anterior bequest.
In view of the foregoing considerations, the appealed decision of the
Court of Appeals is hereby affirmed. Costs against appellants Reyes
and Fernandez. So ordered.
6. EN BANC
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30,
1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz
Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of
First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before her
demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly
the legitimate father and mother of the deceased Rosario Nuguid,
entered their opposition to the probate of her will. Ground
therefor, inter alia, is that by the institution of petitioner Remedios
Nuguid as universal heir of the deceased, oppositors — who are
compulsory heirs of the deceased in the direct ascending line —
were illegally preterited and that in consequence the institution is
void.
SPECIAL PROCEEDINGS/Rule 75 12 of 18
On August 29, 1963, before a hearing was had on the petition for
probate and objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the
motion to dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create intestacy of
the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The court's area of
inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings — is not called
upon to rule on the intrinsic validity or efficacy of the provisions of
the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside
the question of whether or not the will should be allowed probate.
For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will
has been duly authenticated.2 But petitioner and oppositors, in the
court below and here on appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of
the will, nothing will be gained. On the contrary, this litigation will
be protracted. And for aught that appears in the record, in the event
of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the
intrinsic validity or nullity of the will. Result: waste of time, effort,
expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question.3 After
all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of
the conclusion below that the will is a complete nullity. This exacts
from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fifty-
one.
(Sgd.) Illegible

T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil
Code which, in part, provides:
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. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889, which
is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced 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
void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the term preterition employed in
the law becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el
testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna
parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814,
basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un
heredero forzoso. b) Que la omision sea completa; que el
heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear
perspective of the problem before us, to have on hand a clear-cut
definition of the word annul:
To "annul" means to abrogate, to make void ... In
re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to
annul alimony provisions of divorce decree upon wife's
remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify;
to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to
make void or of no effect; to nullify; to abolish; to do away
with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8
SPECIAL PROCEEDINGS/Rule 75 13 of 18
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line her parents, now oppositors
Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits
both of them: They thus received nothing by the testament; tacitly,
they were deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Such preterition in
the words of Manresa "anulara siempre la institucion de heredero,
dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code.9 The one-
sentence will here institutes petitioner as the sole, universal heir —
nothing more. No specific legacies or bequests are therein provided
for. It is in this posture that we say that the nullity is complete.
Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se
anula deja de existir, en todo o en parte? No se añade
limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en
cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y
que este articulo como especial en el caso que le motiva
rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion
de heredero por pretericion de uno, varios o todos los
forzosos en linea recta, es la apertura de la sucesion
intestada total o parcial. Sera total, cuando el testador que
comete la pretericion, hubiese dispuesto de todos los
bienes por titulo universal de herencia en favor de los
herederos instituidos, cuya institucion se anula, porque asi
lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que
"anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there
is no escaping the conclusion that the universal institution of
petitioner to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heir —
without any other testamentary disposition in the will — amounts to
a declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites
the "Memoria annual del Tribunal Supreme, correspondiente a
1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion
la nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en
el sentido antes expuesto aun cuando parezca, y en algun
caso pudiera ser, mas o menos equitativa, porque una
nulidad no significa en Derecho sino la suposicion de que
el hecho o el acto no se ha realizado, debiendo por lo
tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la
institucion, es obligado llamar a los herederos forzosos en
todo caso, como habria que llamar a los de otra clase,
cuando el testador no hubiese distribudo todos sus bienes
en legados, siendo tanto mas obligada esta consecuencia
legal cuanto que, en materia de testamentos, sabido es,
segun tiene declarado la jurisprudencia, con repeticion,

que no basta que sea conocida la voluntad de quien testa
si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y
eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un
heredero cuya institucion fuese anulada con pretexto de
que esto se acomodaba mejor a la voluntad del testador,
pues aun cuando asi fuese, sera esto razon para modificar
la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una
cosa en el terreno del Derecho constituyente, hay razon
para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that,
annullment notwithstanding, "the devises and legacies shall be valid
insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will.
Nothing in Article 854 suggests that the mere institution of a
universal heir in a will — void because of preterition — would give
the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart
and separate from the nullified institution of heir. Sanchez Roman,
speaking of the two component parts of Article 814, now 854, states
that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests)
"pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese dispuesto en
virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except
the institution of petitioner as universal heir. That institution, by
itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition". 15From this, petitioner
draws the conclusion that Article 854 "does not apply to the case at
bar". This argument fails to appreciate the distinction between
pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited." 16 Disinheritance,
in turn, "is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction
by stating that disinheritance "es siempre voluntaria"; preterition,
upon the other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a legal
cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the
forced heirs. It simply omits their names altogether. Said will rather
than be labeled ineffective disinheritance is clearly one in which the
said forced heirs suffer from preterition.
SPECIAL PROCEEDINGS/Rule 75 14 of 18
On top of this is the fact that the effects flowing from preterition are
totally different from those of disinheritance. Preterition under
Article 854 of the Civil Code, we repeat, "shall annul the institution
of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the institution of heirs",
put only "insofar as it may prejudice the person disinherited", which
last phrase was omitted in the case of preterition. 21 Better stated
yet, in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally deprived.
Manresa's expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el
derecho a todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance of
the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief
Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by
universal title in favor of the children by the second
marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If
every case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814
and 851 regarding total or partial nullity of the institution,
would. be absolutely meaningless and will never have any
application at all. And the remaining provisions contained
in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because
they would be absorbed by Article 817. Thus, instead of
construing, we would be destroying integral provisions of
the Civil Code.
The destructive effect of the theory thus advanced is due
mainly to a failure to distinguish institution of heirs from
legacies and betterments, and a general from a special
provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must
be observed that the institution of heirs is therein dealt
with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said
article but because they are in themselves different.
Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But
again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a
complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the will
before us solely provides for the institution of petitioner as universal
heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963
under review is hereby affirmed. No costs allowed. So ordered.
7. SECOND DIVISION
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision
of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon
City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of
the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand,
Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171,
for allowance of decedent's holographic will. They alleged that at
the time of its execution, she was of sound and disposing mind, not
acting under duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured
by petitioners through improper pressure and undue influence. The
petition was likewise opposed by Dr. Jose Ajero. He contested the
disposition in the will of a house and lot located in Cabadbaran,
Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings
herein must decide only the question of identity
of the will, its due execution and the
testamentary capacity of the testatrix, this
probate court finds no reason at all for the
disallowance of the will for its failure to comply
SPECIAL PROCEEDINGS/Rule 75 15 of 18
with the formalities prescribed by law nor for
lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show
that the will in question is different from the will
actually executed by the testatrix. The only
objections raised by the oppositors . . . are that
the will was not written in the handwriting of the
testatrix which properly refers to the question of
its due execution, and not to the question of
identity of will. No other will was alleged to have
been executed by the testatrix other than the
will herein presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be accepted, i.e., the
will submitted in Court must be deemed to be
the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the
holographic will in question was indeed written
entirely, dated and signed in the handwriting of
the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the
handwriting of the testatrix have been presented
and have explicitly and categorically identified
the handwriting with which the holographic will
in question was written to be the genuine
handwriting and signature of the testatrix. Given
then the aforesaid evidence, the requirement of
the law that the holographic will be entirely
written, dated and signed in the handwriting of
the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity
of the testratix, (private respondent) Clemente
Sand himself has testified in Court that the
testatrix was completely in her sound mind
when he visited her during her birthday
celebration in 1981, at or around which time the
holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that
the testatrix, at the time of making the will,
knew the value of the estate to be disposed of,
the proper object of her bounty, and
the characterof the testamentary act . . . The will
itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even
identified the lot number and square meters of
the lots she had conveyed by will. The objects of
her bounty were likewise identified explicitly.
And considering that she had even written a
nursing book which contained the law and
jurisprudence on will and succession, there is
more than sufficient showing that she knows the
character of the testamentary act.

In this wise, the question of identity of the will,
its due execution and the testamentary capacity
of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted
herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the
said will was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person, the
evidence adduced have not shown any instance
where improper pressure or influence was
exerted on the testatrix. (Private respondent)
Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the
will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also
established that she is a very intelligent person
and has a mind of her own. Her independence of
character and to some extent, her sense of
superiority, which has been testified to in Court,
all show the unlikelihood of her being unduly
influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue
influence or improper pressure in question
herein only refer to the making of a will and not
as to the specific testamentary provisions
therein which is the proper subject of another
proceeding. Hence, under the circumstances,
this Court cannot find convincing reason for the
disallowance of the will herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred
over intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will submitted
herein must be admitted to probate. 3 (Citations
omitted.)
On appeal, said Decision was reversed, and the petition for probate
of decedent's will was dismissed. The Court of Appeals found that,
"the holographic will fails to meet the requirements for its
validity." 4 It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition has
a signature and date, such date validates the
dispositions preceding it, whatever be the time
of prior dispositions.
Art. 814: In case of insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
SPECIAL PROCEEDINGS/Rule 75 16 of 18
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that
the erasures, alterations and cancellations made thereon had not
been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of
the following cases;
(1) If the formalities required
by law have not been
complied with;
(2) If the testator was insane,
or otherwise mentally
incapable of making a will, at
the time of its execution;
(3) If it was executed through
force or under duress, or the
influence of fear, or threats;
(4) If it was procured by
undue and improper
pressure and influence, on
the part of the beneficiary or
of some other person;
(5) If the signature of the
testator was procured by
fraud;
(6) If the testator acted by
mistake or did not intend
that the instrument he

signed should be his will at
the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the
only issues to be resolved are: (1) whether the instrument submitted
is, indeed, the decedent's last will and testament; (2) whether said
will was executed in accordance with the formalities prescribed by
law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the
execution of the will and its signing were the voluntary acts of the
decedent. 6
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the
probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476,
479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail
the exercise of the right to make a will. So when
an interpretation already given assures such
ends, any other interpretation whatsoever, that
adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article 810
of the New Civil Code, thus:
A person may execute a holographic will which
must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will not result
in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and
SPECIAL PROCEEDINGS/Rule 75 17 of 18
date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814.
In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been
noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only
as respects the particular words erased,
corrected or interlined. Manresa gave an
identical commentary when he said "la omission
de la salvedad no anula el testamento, segun la
regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1985." 8 (Citations
omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the
testator writes it himself in the form and with
the requisites required in Article 688.
Art. 688: Holographic wills may be executed only
by persons of full age.
In order that the will be valid it must be drawn
on stamped paper corresponding to the year of
its execution, written in its entirety by the
testator and signed by him, and must contain a
statement of the year, month and day of its
execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their
own language.
This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the New Civil Code —
and not those found in Articles 813 and 814 of the same Code — are
essential to the probate of a holographic will.
 SPECIAL PROCEEDINGS/Rule 75 18 of 18
The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be
affirmed.

As a general rule, courts in probate proceedings are limited to pass

only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain
provisions of the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in
its entirety). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her
father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of

the Court of Appeals in CA-G.R. CV No. 22840, dated March 30,
1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in
Cabadbaran, Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs.

SO ORDERED.