THIRD DIVISION  they . .
they . . (were) enriching themselves at the expense
G.R. No. 110427 February 24, 1997
The Incompetent, CARMEN CAÑIZA,
represented by her legal guardian, AMPARO
EVANGELISTA, petitioner,
1 money as her house could not be rented by
vs. COURT OF APPEALS (SPECIAL FIRST
DIVISION), PEDRO ESTRADA and his wife,
LEONORA ESTRADA, respondents.
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94)
years of age, Carmen Cañiza, a spinster, a retired
pharmacist, and former professor of the College of
Chemistry and Pharmacy of the University of the
Philippines, was declared incompetent by
judgment1 of the Regional Trial Court of Quezon
City, Branch 107,2 in a guardianship proceeding
instituted by her niece, Amparo A.
Evangelista.3 She was so adjudged because of her
advanced age and physical infirmities which
included cataracts in both eyes and
senile dementia. Amparo A. Evangelista was
appointed legal guardian of her person and estate.
Cañiza was the owner of a house and lot at No. 61
Tobias St., Quezon City. On September 17, 1990,
her guardian Amparo Evangelista commenced a
suit in the Metropolitan Trial Court (MetroTC) of
Quezon City (Branch 35) to eject the spouses Pedro
and Leonora Estrada from said premises.4 The
complaint was later amended to identify the
incompetent Cañiza as plaintiff, suing through her
legal guardian, Amparo Evangelista.
The amended Complaint5 pertinently alleged that
plaintiff Cañiza was the absolute owner of the
property in question, covered by TCT No. 27147;
that out of kindness, she had allowed the Estrada
Spouses, their children, grandchildren and sons-in-
law to temporarily reside in her house, rent-free;
that Cañiza already had urgent need of the house
on account of her advanced age and failing health,
"so funds could be raised to meet her expenses for
support, maintenance and medical treatment;" that
through her guardian, Cañiza had asked the
Estradas verbally and in writing to vacate the
house but they had refused to do so; and that "by
the defendants' act of unlawfully depriving plaintiff
of the possession of the house in question,
and until it has passed probate by the proper court,
of the incompetent, because, while they . . (were)
saving money by not paying any rent for the
house, the incompetent . . (was) losing much
others." Also alleged was that the complaint was
"filed within one (1) year from the date of of first
letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants
declared that they had been living in Cañiza's
house since the 1960's; that in consideration of
their faithful service they had been considered by
Cañiza as her own family, and the latter had in fact
executed a holographic will on September 4, 1988
by which she "bequeathed" to the Estradas the
house and lot in question.
Judgment was rendered by the MetroTC on April
13, 1992 in Cañiza's favor,6 the Estradas being
ordered to vacate the premises and pay Cañiza
P5,000.00 by way of attorney's fees.
But on appeal,8 the decision was reversed by the
Quezon City Regional Trial Court, Branch 96.9 By
judgment rendered on October 21, 1992, 10 the RTC
held that the "action by which the issue of
defendants' possession should be resolved
is accion publiciana, the obtaining factual and legal
situation . . demanding adjudication by such
plenary action for recovery of possession
cognizable in the first instance by the Regional
Trial Court."
Cañiza sought to have the Court of Appeals reverse
the decision of October 21, 1992, but failed in that
attempt. In a decision 11 promulgated on June 2,
1993, the Appellate Court 12 affirmed the RTC's
judgment in toto. It ruled that (a) the proper
remedy for Cañiza was indeed an accion
publiciana in the RTC, not an accion interdictal in
the MetroTC, since the "defendants have not been
in the subject premises as mere tenants or
occupants by tolerance, they have been there as a
sort of adopted family of Carmen Cañiza," as
evidenced by what purports to be the holographic
will of the plaintiff; and (b) while "said will, unless
could not be the basis of defendants' claim to the
property, . . it is indicative of intent and desire on
the part of Carmen Cañiza that defendants are to
remain and are to continue in their occupancy and
possession, so much so that Cañiza's supervening
incompetency can not be said to have vested in
her guardian the right or authority to drive the
defendants out." 13
Through her guardian, Cañiza came to this Court
praying for reversal of the Appellate Court's
judgment. She contends in the main that the latter
erred in (a) holding that she should have pursued
an accion publiciana, and not an accion interdictal;
and in (b) giving much weight to "a xerox copy of
an alleged holographic will, which is irrelevant to
this case." 14
In the responsive pleading filed by them on this
Court's requirement, 15 the Estradas insist that the
case against them was really not one of unlawful
detainer; they argue that since possession of the
house had not been obtained by them by any
"contract, express or implied," as contemplated by
Section 1, Rule 70 of the Rules of Court, their
occupancy of the premises could not be deemed
one "terminable upon mere demand (and hence
never became unlawful) within the context of the
law." Neither could the suit against them be
deemed one of forcible entry, they add, because
they had been occupying the property with the
prior consent of the "real owner," Carmen Cañiza,
which "occupancy can even ripen into full
ownership once the holographic will of petitioner
Carmen Cañiza is admitted to probate." They
conclude, on those postulates, that it is beyond the
power of Cañiza's legal guardian to oust them from
the disputed premises.
Carmen Cañiza died on March 19, 1994, 16 and her
heirs — the aforementioned guardian, Amparo
Evangelista, and Ramon C. Nevado, her niece and
nephew, respectively — were by this Court's leave,
substituted for her. 17
Three issues have to be resolved: (a) whether or
not an ejectment action is the appropriate judicial
remedy for recovery of possession of the property
in dispute; (b) assuming desahucio to be proper,
whether2 or not Evangelista, as Cañiza's legal
guardian had authority to bring said action; and (c)
assuming an affirmative answer to both questions,
whether or not Evangelista may continue to
represent Cañiza after the latter's death.
I
It is axiomatic that what determines the nature of
an action as well as which court has jurisdiction
over it, are the allegations of the complaint and the
character of the relief sought. 18 An inquiry into the
averments of the amended complaint in the Court
of origin is thus in order. 19
The amended Complaint alleges: 20
6. That the plaintiff Carmen Cañiza, is the sole and
absolute owner of a house and lot at No. 61 Scout
Tobias, Quezon City, which property is now the
subject of this complaint;
xxx xxx xxx
9. That the defendants, their children,
grandchildren and sons-in-law, were allowed to live
temporarily in the house of plaintiff Carmen
Cañiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian,
has duly notified the defendants, for them to
vacate the said house, but the two (2) letters of
demand were ignored and the defendants refused
to vacate the same. . .
11. That the plaintiff, represented by her legal
guardian, Amparo Evangelista, made another
demand on the defendants for them to vacate the
premises, before Barangay Captain Angelina A.
Diaz of Barangay Laging Handa, Quezon City, but
after two (2) conferences, the result was negative
and no settlement was reached. A photocopy of the
Certification to File Action dated July 4, 1990,
issued by said Barangay Captain is attached,
marked Annex "D" and made an integral part
hereof;
12. That the plaintiff has given the defendants
more than thirty (30) days to vacate the house, but
they still refused to vacate the premises, and they
are up to this time residing in the said place;
13. That this complaint is filed within one (1) year
from the date of first letter of demand dated
February 3, 1990 (Annex "B") sent by the plaintiff
to the defendants, by her legal guardian — Amparo
Evangelista;
14. By the defendants' act of unlawfully depriving
the plaintiff of the possession of the house in
question, they are enriching themselves at the
expense of the incompetent plaintiff because,
while they are saving money by not paying any
rent for the house, the plaintiff is losing much
money as her house could not be rented by others;
15. That the plaintiff's health is failing and she
needs the house urgently, so that funds could be
raised to meet her expenses for her support,
maintenance and medical treatment;
16. That because of defendants' refusal to vacate
the house at No. 61 Scout Tobias, Quezon City, the
plaintiff, through her legal guardian, was compelled
to go to court for justice, and she has to spend
P10,000.00 as attorney's fees.
Its prayer 21 is quoted below:
WHEREFORE, in the interest of justice and the rule
of law, plaintiff, Carmen Cañiza, represented by
her legal guardian, Amparo Evangelista,
respectfully prays to this Honorable Court, to
render judgment in favor of plaintiff and against
the defendants as follows:
1. To order the defendants, their children,
grandchildren, sons-in-law and other persons
claiming under them, to vacate the house and
premises at No. 6 1 Scout Tobias, Quezon City, so
that its possession can be restored to the
plaintiff Carmen Cañiza; and
2. To pay attorney's fees in the amount of
P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:
1) that the Estradas were occupying Cañiza's
house by tolerance — having been "allowed to live
temporarily . . (therein) for free, out of . . (Cañiza's)
kindness;"
2) that Cañiza needed the house "urgently"
because her "health . . (was) failing and she . .
(needed) funds . . to meet her expenses for her
support, maintenance and medical treatment;"
3) that through her general guardian, Cañiza
requested the Estradas several times, orally and in
writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse
to give back the house to Cañiza, to her continuing
prejudice; and
5) that the action was filed within one (1) year from
the last demand to vacate.
Undoubtedly, a cause of action for desahucio has
been adequately set out. It is settled that in an
action for unlawful detainer, it suffices to allege
that the defendant is unlawfully withholding
possession from the plaintiff is deemed
sufficient, 22 and a complaint for unlawful detainer
is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful
without necessarily employing the terminology of
the law. 23
The Estradas' first proffered defense derives from a
literal construction of Section 1, Rule 70 of the
Rules of Court which inter alia authorizes the
institution of an unlawful detainer suit when "the
possession of any land or building is unlawfully
withheld after the expiration or termination of the
right to hold possession, by virtue of any contract,
express or implied." They contend that since they
did not acquire possession of the property in
question "by virtue of any contract, express or
implied" — they having been, to repeat, "allowed
to live temporarily . . (therein) for free, out of . .
(Cañiza's) kindness" — in no sense could there be
an "expiration or termination of . . (their) right to
hold possession, by
3 virtue of any contract, express
or implied." Nor would an action for forcible entry
lie against them, since there is no claim that they
had "deprived (Cañiza) of the possession of . . (her
property) by force, intimidation, threat, strategy, or
stealth.
The argument is arrant sophistry. Cañiza's act of
allowing the Estradas to occupy her house, rent-
free, did not create a permanent and indefeasible
right of possession in the latter's favor. Common
sense, and the most rudimentary sense of fairness
clearly require that that act of liberality be
implicitly, but no less certainly, accompanied by
the necessary burden on the Estradas of returning
the house to Cañiza upon her demand. More than
once has this Court adjudged that a person who
occupies the land of another at the latter's
tolerance or permission without any contract
between them is necessarily bound by an implied
promise that he will vacate upon demand, failing
which a summary action for ejectment is the
proper remedy against him. 24 The situation is not
much different from that of a tenant whose lease
expires but who continues in occupancy by
tolerance of the owner, in which case there is
deemed to be an unlawful deprivation or
withholding of possession as of the date of the
demand to vacate. 25 In other words, one whose
stay is merely tolerated becomes a deforciant
illegally occupying the land or property the
moment he is required to leave. 26 Thus, in Asset
Privatization Trust vs. Court of Appeals, 27 where a
company, having lawfully obtained possession of a
plant upon its undertaking to buy the same,
refused to return it after failing to fulfill its promise
of payment despite demands, this Court held that
"(a)fter demand and its repudiation, . . (its)
continuing possession . . became illegal and the
complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection
that where there had been more than one demand
to vacate, the one-year period for filing the
complaint for unlawful detainer must be reckoned
from the date of the last demand, 28 the reason
being that the lessor has the option to waive his
right of action based on previous demands and let
the lessee remain meanwhile in the
premises. 29 Now, the complaint filed by Cañiza's
guardian alleges that the same was "filed within
one (1) year from the date of the first letter of
demand dated February 3, 1990." Although this
averment is not in accord with law because there is
in fact a second letter of demand to vacate, dated
February 27, 1990, the mistake is inconsequential,
since the complaint was actually filed on
September 17, 1990, well within one year from
the second (last) written demand to vacate.
The Estradas' possession of the house stemmed
from the owner's express permission. That
permission was subsequently withdrawn by the
owner, as was her right; and it is immaterial that
the withdrawal was made through her judicial
guardian, the latter being indisputably clothed with
authority to do so. Nor is it of any consequence
that Carmen Cañiza had executed a will
bequeathing the disputed property to the Estradas;
that circumstance did not give them the right to
stay in the premises after demand to vacate on the
theory that they might in future become owners
thereof, that right of ownership being at best
inchoate, no transfer of ownership being possible
unless and until the will is duly probated.
Thus, at the time of the institution of the action
of desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or
sufferance, or as owners. They could not claim the
right of possession by sufferance; that had been
legally ended. They could not assert any right of
possession flowing from their ownership of the
house; their status as owners is dependent on the
probate of the holographic will by which the
property had allegedly been bequeathed to them
— an event which still has to take place; in other
words, prior to the probate of the will, any
assertion of possession by them would be
premature and inefficacious.
In any case, the only issue that could legitimately
be raised under the circumstances was that
involving the Estradas' possession by
tolerance, i.e., possession de facto, not de jure. It is
therefore incorrect to postulate that the proper
remedy for Cañiza is not ejectment but accion
publiciana, a plenary action in the RTC or an action
that is one for recovery of the right to
possession de jure.
II
The Estradas insist that the devise of the house to
them by Cañiza clearly denotes her intention that
they remain in possession thereof, and legally
incapacitated her judicial guardian, Amparo
Evangelista, from evicting them therefrom, since
their ouster would be inconsistent with the ward's
will.
A will is essentially ambulatory; at any time prior to
the testator's death, it may be changed or
revoked; 30 and until admitted to probate, it has no
effect whatever and no right can be claimed
thereunder, the law being quite explicit: "No will
shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules
of Court" (ART. 838, id.). 31 An owner's intention to
confer title in the future to persons possessing
property by his tolerance, is not inconsistent with
the former's taking back possession in the
meantime for any reason deemed sufficient. And
that in this case there was sufficient cause for the
owner's resumption of possession is apparent: she
needed to generate income from the house on
account of the physical infirmities afflicting her,
arising from her extreme age.
Amparo Evangelista was appointed by a competent
court the general guardian of both the person and
the estate of her aunt, Carmen Cañiza. Her Letters
of Guardianship 32 dated December 19, 1989
clearly installed her as the "guardian over
the person and properties of the incompetent
CARMEN CANIZA with full authority to take
possession of the property of said incompetent in
any province or provinces in which it may be
situated and to perform all other acts necessary for
the management of her properties . . " 33 By that
appointment,
4 it became Evangelista's duty to care
for her aunt's person, to attend to her physical and
spiritual needs, to assure her well-being, with right
to custody of her person in preference to relatives
and friends. 34 It also became her right and duty to
get possession of, and exercise control over,
Cañiza's property, both real and personal, it being
recognized principle that the ward has no right to
possession or control of his property during her
incompetency. 35 That right to manage the ward's
estate carries with it the right to take possession
thereof and recover it from anyone who retains
it, 36 and bring and defend such actions as may be
needful for this purpose. 37
Actually, in bringing the action of desahucio,
Evangelista was merely discharging the duty to
attend to "the comfortable and suitable
maintenance of the ward" explicitly imposed on her
by Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and
proceeds applied to maintenance of ward. — A
guardian must manage the estate of his ward
frugally and without waste, and apply the income
and profits thereof, so far as maybe necessary, to
the comfortable and suitable maintenance of the
ward and his family, if there be any; and if such
income and profits be insufficient for that purpose,
the guardian may sell or encumber the real estate,
upon being authorized by order to do so, and apply
to such of the proceeds as may be necessary to
such maintenance.
Finally, it may be pointed out in relation to the
Estradas's defenses in the ejectment action, that
as the law now stands, even when, in forcible entry
and unlawful detainer cases, the defendant raises
the question of ownership in his pleadings and the
question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts nevertheless have the
undoubted competence to resolve "the issue of
ownership . . only to determine the issue of
possession." 38
III
As already stated, Carmen Cañiza passed away
during the pendency of this appeal. The Estradas
thereupon moved to dismiss the petition, arguing
that Cañiza's death automatically terminated the
guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to
have legal personality to represent her in the
present appeal. The motion is without merit.
While it is indeed well-established rule that the
relationship of guardian and ward is necessarily
terminated by the death of either the guardian or
the ward, 39 the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of Carmen
Cañiza, is one of the latter's only two (2) surviving
heirs, the other being Cañiza's nephew, Ramon C.
Nevado. On their motion and by Resolution of this
Court 40 of June 20, 1994, they were in fact
substituted as parties in the appeal at bar in place
of the deceased, in accordance with Section 17,
Rule 3 of the Rules of Court, viz.: 41
Sec. 18. Death of a party. — After a party dies and
the claim is not thereby extinguished, the court
shall order, upon proper notice, the legal
representative of the deceased to appear and be
substituted for the deceased within a period of
thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear
within said time, the court may order the opposing
party to procure the appointment of a legal
representative of the deceased within a time to be
specified by the court, and the representative shall
immediately appear for and on behalf of the
interest of the deceased. The court charges
involved in procuring such appointment, if
defrayed by the opposing party, may be recovered
as costs. The heirs of the deceased may be allowed
to be substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint
guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death
of a party. Cañiza's demise did not extinguish
the desahucio suit instituted by her through her
guardian. 42 That action, not being a purely
personal one, survived her death; her heirs have
taken her place and now represent her interests in
the appeal at bar.
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals promulgated on
June 2, 1993 — affirming the Regional Trial Court's
judgment and dismissing petitioner's petition
for certiorari — is REVERSED and SET ASIDE, and
the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35,
in Civil Case No. 3410 is REINSTATED and
AFFIRMED. Costs against private respondents.
SO ORDERED.
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.
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
5 is void.
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.
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 betterments 4 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
And now, back to the facts and the law. The
deceased6 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". 15 From 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
18
la misma7 se denomina pretericion."   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.
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.
THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs. JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those
who oppose it rests the burden of showing why it
should not be allowed. In the present case,
petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot
attribute any reversible error on the part of the
appellate tribunal that allowed the probate of the
will.
The Case
Before the Court is a Petition for Review1 under
Rule 45 of the Rules of Court, seeking to reverse
and set aside the December 12, 2002 Decision 2 and
the March 7, 2003 Resolution3 of the Court of
Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the
Decision appealed from is REVERSED and SET
ASIDE. In its place judgment is rendered approving
and allowing probate to the said last will and
testament of Placido Valmonte and ordering the
issuance of letters testamentary to the petitioner
Josefina Valmonte. Let this case be remanded to
the court a quo for further and concomitant
proceedings."4
The assailed Resolution denied petitioner’s Motion
for Reconsideration.
The Facts
The facts were summarized in the assailed
Decision of the CA, as follows:
"x x x: Like so many others before him, Placido
toiled and lived for a long time in the United States
until he finally reached retirement. In 1980, Placido
finally came home to stay in the Philippines, and he
lived in the house and lot located at #9200 Catmon
St., San Antonio Village, Makati, which he owned in
common with his sister Ciriaca Valmonte and titled
in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80
he wed Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio, Jr.
on February 5, 1982. But in a little more than two
years of wedded bliss, Placido died on October 8,
1984 of a cause written down as COR PULMONALE.
8 Manila also covered by Tax Declaration No. A-025-
"Placido executed a notarial last will and testament
written in English and consisting of two (2) pages,
and dated June 15, 1983 but acknowledged only on
August 9, 1983. The first page contains the entire
testamentary dispositions and a part of the
attestation clause, and was signed at the end or
bottom of that page by the testator and on the left
hand margin by the three instrumental witnesses.
The second page contains the continuation of the
attestation clause and the acknowledgment, and
was signed by the witnesses at the end of the
attestation clause and again on the left hand
margin. It provides in the body that:
‘LAST WILL AND TESTAMENT OF PLACIDO
VALMONTE IN THE NAME OF THE LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to
Josefina Cabansag Valmonte, and a resident of
9200 Catmon Street, Makati, Metro Manila, 83
years of age and being of sound and disposing
mind and memory, do hereby declare this to be my
last will and testament:
1. It is my will that I be buried in the Catholic
Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said
Church and that a suitable monument to be
erected and provided my by executrix (wife) to
perpetuate my memory in the minds of my family
and friends;
2. I give, devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half (1/2) portion of
the follow-described properties, which belongs to
me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575,
LRC, (GLRO), situated in Makati, Metro Manila,
described and covered by TCT No. 123468 of the
Register of Deeds of Pasig, Metro-Manila registered
jointly as co-owners with my deceased sister
(Ciriaca Valmonte), having share and share alike;
b. 2-storey building standing on the above-
described property, made of strong and mixed
materials used as my residence and my wife and
located at No. 9200 Catmon Street, Makati, Metro
00482, Makati, Metro-Manila, jointly in the name of
my deceased sister, Ciriaca Valmonte and myself
as co-owners, share and share alike or equal co-
owners thereof;
3. All the rest, residue and remainder of my real
and personal properties, including my savings
account bank book in USA which is in the
possession of my nephew, and all others
whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte
as sole executrix of my last will and testament, and
it is my will that said executrix be exempt from
filing a bond;
IN WITNESS WHEREOF, I have hereunto set my
hand this 15th day of June 1983 in Quezon City,
Philippines.’
"The allowance to probate of this will was opposed
by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the
testator, especially those found in the USA;
2. Petitioner failed to state the names, ages, and
residences of the heirs of the testator; or to give
them proper notice pursuant to law;
3. Will was not executed and attested as required
by law and legal solemnities and formalities were
not complied with;
4. Testator was mentally incapable to make a will
at the time of the alleged execution he being in an
advance sate of senility;
5. Will was executed under duress, or the influence
of fear or threats;
6. Will was procured by undue and improper
influence and pressure on the part of the petitioner
and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or
trick, and he did not intend that the instrument
should be his will at the time of affixing his
signature thereto;’
and she also opposed the appointment as
Executrix of Josefina alleging her want of
understanding and integrity.
"At the hearing, the petitioner Josefina testified and
called as witnesses the notary public Atty. Floro
Sarmiento who prepared and notarized the will,
and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For
the opposition, the oppositor Leticia and her
daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the
testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to
Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence.
There were times though when to shave off on
expenses, the testator would travel alone. And it
was in one of his travels by his lonesome self when
the notarial will was made. The will was witnessed
by the spouses Eugenio and Feliza Gomez, who
were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the
existence of the last will and testament of her
husband, but just serendipitously found it in his
attache case after his death. It was only then that
she learned that the testator bequeathed to her his
properties and she was named the executrix in the
said will. To her estimate, the value of property
both real and personal left by the testator is worth
more or less P100,000.00. Josefina declared too
that the testator never suffered mental infirmity
because despite his old age he went alone to the
market which is two to three kilometers from their
home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even
traveled to Manila alone to claim his monthly
pension. Josefina also asserts that her husband was
in good health and that he was hospitalized only
because of a cold but which eventually resulted in
his death.
"Notary Public Floro Sarmiento, the notary public
who notarized the testator’s will, testified that it
was in the first week of June 1983 when the
testator together with the three witnesses of the
will went to his house cum law office and requested
him to prepare his last will and testament. After
the testator instructed him on the terms and
dispositions he wanted on the will, the notary
public told them to come back on June 15, 1983 to
give him time to prepare it. After he had prepared
the will the notary public kept it safely hidden and
locked in his drawer. The testator and his
witnesses returned on the appointed date but the
notary public was out of town so they were
instructed
9 by his wife to come back on August 9,
1983, and which they did. Before the testator and
his witnesses signed the prepared will, the notary
public explained to them each and every term
thereof in Ilocano, a dialect which the testator
spoke and understood. He likewise explained that
though it appears that the will was signed by the
testator and his witnesses on June 15, 1983, the
day when it should have been executed had he not
gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he no
longer changed the typewritten date of June 15,
1983 because he did not like the document to
appear dirty. The notary public also testified that to
his observation the testator was physically and
mentally capable at the time he affixed his
signature on the will.
"The attesting witnesses to the will corroborated
the testimony of the notary public, and testified
that the testator went alone to the house of
spouses Eugenio and Feliza Gomez at GSIS Village,
Quezon City and requested them to accompany
him to the house of Atty. Floro Sarmiento
purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were
told to return on June 15, 1983; that they returned
on June 15, 1983 for the execution of the will but
were asked to come back instead on August 9,
1983 because of the absence of the notary public;
that the testator executed the will in question in
their presence while he was of sound and disposing
mind and that he was strong and in good health;
that the contents of the will was explained by the
notary public in the Ilocano and Tagalog dialect
and that all of them as witnesses attested and
signed the will in the presence of the testator and
of each other. And that during the execution, the
testator’s wife, Josefina was not with them.
"The oppositor Leticia declared that Josefina should
not inherit alone because aside from her there are
other children from the siblings of Placido who are
just as entitled to inherit from him. She attacked
the mental capacity of the testator, declaring that
at the time of the execution of the notarial will the
testator was already 83 years old and was no
longer of sound mind. She knew whereof she spoke
because in 1983 Placido lived in the Makati
residence and asked Leticia’s family to live with
him and they took care of him. During that time,
the testator’s physical and mental condition
showed deterioration, aberrations and senility. This
was corroborated by her daughter Mary Jane
Ortega for whom Placido took a fancy and wanted
to marry.
"Sifting through the evidence, the court a quo held
that [t]he evidence adduced, reduces the
opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and
formalities in the execution and attestation of the
will; and
2. Mental incapacity of the testator at the time of
the execution of the will as he was then in an
advanced state of senility
"It then found these grounds extant and proven,
and accordingly disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court
admitted the will of Placido Valmonte to probate.
The CA upheld the credibility of the notary public
and the subscribing witnesses who had
acknowledged the due execution of the will.
Moreover, it held that the testator had
testamentary capacity at the time of the execution
of the will. It added that his "sexual exhibitionism
and unhygienic, crude and impolite ways"6 did not
make him a person of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our
consideration:
"I.
Whether or not the findings of the probate court
are entitled to great respect.
"II.
Whether or not the signature of Placido Valmonte
in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended
that the instrument should be his last will and
testament.
"III.
Whether or not Placido Valmonte has testamentary
capacity at the time he allegedly executed the
subject will."8
In short, petitioner assails the CA’s allowance of
the probate of the will of Placido Valmonte.
This Court’s Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law
may be raised in a Petition for Review under
Section 1 of Rule 45 of the Rules of Court. As an
exception, however, the evidence presented during
the trial may be examined and the factual matters
resolved by this Court when, as in the instant case,
the findings of fact of the appellate court differ
from those of the trial court.9
The fact that public policy favors the probate of a
will does not necessarily mean that every will
presented for probate should be allowed. The law
lays down the procedures and requisites that must
be satisfied for the probate of a will.10 Verily, Article
839 of the Civil Code states the instances when a
will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time of
its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and 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."
In the present case, petitioner assails the validity
of Placido Valmonte’s will by imputing fraud in its
execution and challenging the testator’s state of
mind at the time.
Existence of Fraud in them Execution of a
Will
Petitioner does not dispute the due observance of
the formalities in the execution of the will, but
maintains
10 that the circumstances surrounding it
are indicative of the existence of fraud.
Particularly, she alleges that respondent, who is
the testator’s wife and sole beneficiary, conspired
with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception
is allegedly reflected in the varying dates of the
execution and the attestation of the will.
Petitioner contends that it was "highly dubious for
a woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who
[was] thrice her age x x x and who happened to be
[a] Fil-American pensionado,"11 thus casting doubt
on the intention of respondent in seeking the
probate of the will. Moreover, it supposedly "defies
human reason, logic and common experience" 12 for
an old man with a severe psychological condition
to have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret
device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the
nature or contents of the document which he
executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the
testator is led to make a certain will which, but for
the fraud, he would not have made."13
We stress that the party challenging the will bears
the burden of proving the existence of fraud at the
time of its execution. 14 The burden to show
otherwise shifts to the proponent of the will only
upon a showing of credible evidence of
fraud.15 Unfortunately in this case, other than the
self-serving allegations of petitioner, no evidence
of fraud was ever presented.
It is a settled doctrine that the omission of some
relatives does not affect the due execution of a
will.16 That the testator was tricked into signing it
was not sufficiently established by the fact that he
had instituted his wife, who was more than fifty
years his junior, as the sole beneficiary; and
disregarded petitioner and her family, who were
the ones who had taken "the cudgels of taking care
of [the testator] in his twilight years."17
Moreover, as correctly ruled by the appellate court,
the conflict between the dates appearing on the
will does not invalidate the document, "because
the law does not even require that a [notarial] will
x x x be executed and acknowledged on the same
occasion."18 More important, the will must be
subscribed by the testator, as well as by three or
more credible witnesses who must also attest to it
in the presence of the testator and of one
another.19 Furthermore, the testator and the
witnesses must acknowledge the will before a
notary public.20 In any event, we agree with the CA
that "the variance in the dates of the will as to its
supposed execution and attestation was
satisfactorily and persuasively explained by the
notary public and the instrumental witnesses." 21
The pertinent transcript of stenographic notes
taken on June 11, 1985, November 25, 1985,
October 13, 1986, and October 21, 1987 -- as
quoted by the CA -- are reproduced respectively as
follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying
the date June 15 when the testator and his
witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his
witnesses come to your house?
A They did as of agreement but unfortunately, I
was out of town.
xxxxxxxxx
Q The document has been acknowledged on
August 9, 1983 as per acknowledgement appearing
therein. Was this the actual date when the
document was acknowledged?
A Yes sir.
Q What about the date when the testator and the
three witnesses affixed their respective signature
on the first and second pages of exhibit C?
A On that particular date when it was
acknowledged, August 9, 1983.
Q Why did you not make the necessary correction
on the date appearing on the body of the
document as well as the attestation clause?
A Because I do not like anymore to make some
alterations so I put it in my own handwriting August
9, 1983 on the acknowledgement. (tsn, June 11,
1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is
dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will
you look at this document and tell us this
discrepancy in the date?
A We went to Atty. Sarmiento together with Placido
Valmonte and the two witnesses; that was first
week of June and Atty. Sarmiento told us to return
on the 15th of June but when we returned, Atty.
Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June
15, 1983, did you again go back?
A We returned on the 9th of August and there we
signed.
Q This August 9, 1983 where you said it is there
where you signed, who were your companions?
A The two witnesses, me and Placido Valmonte.
(tsn, November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty.
Floro Sarmiento, three times?
xxxxxxxxx
A The reason why we went there three times is
that, the first week of June was out first time. We
went there to talk to Atty. Sarmiento and Placido
Valmonte about the last will and testament. After
that what they have talked what will be placed in
the testament, what Atty. Sarmiento said was that
he will go back on the 15th of June. When we
returned on June 15, Atty. Sarmiento was not there
so we were not able to sign it, the will. That is why,
for the third time we went there on August 9 and
that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his
house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will
be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the
house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, 11 petitioner failed to substantiate her claim
of a "grand conspiracy" in the commission of a
fraud. There was no showing that the witnesses of
the proponent stood to receive any benefit from
the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are
credible evidence of its due execution. 23 Their
testimony favoring it and the finding that it was
executed in accordance with the formalities
required by law should be affirmed, absent any
showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make
a will, the Civil Code gives the following guidelines:
"Article 798. In order to make a will it is essential
that the testator be of sound mind at the time of its
execution.
"Article 799. To be of sound mind, it is not
necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.
"It shall be sufficient if the testator was able at the
time of making the will to know the nature of the
estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person
is of sound mind, in the absence of proof to the
contrary.
"The burden of proof that the testator was not of
sound mind at the time of making his dispositions
is on the person who opposes the probate of the
will; but if the testator, one month, or less, before
making his will was publicly known to be insane,
the person who maintains the validity of the will
must prove that the testator made it during a lucid
interval."
According to Article 799, the three things that the
testator must have the ability to know to be
considered of sound mind are as follows: (1) the
nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the
character of the testamentary act. Applying this
test to the present case, we find that the appellate
court was correct in holding that Placido had
testamentary capacity at the time of the execution
of his will.
It must be noted that despite his advanced age, he
was still able to identify accurately the kinds of
property he owned, the extent of his shares in
them and even their locations. As regards the
proper objects of his bounty, it was sufficient that
he identified his wife as sole beneficiary. As we
have stated earlier, the omission of some relatives
from the will did not affect its formal validity. There
being no showing of fraud in its execution, intent in
its disposition becomes irrelevant.
Worth reiterating in determining soundness of
mind is Alsua-Betts v. CA,25 which held thus:
"Between the highest degree of soundness of mind
and memory which unquestionably carries with it
full testamentary capacity, and that degrees of
mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental
capacity or incapacity and while on one hand it has
been held that mere weakness of mind, or partial
imbecility from disease of body, or from age, will
not render a person incapable of making a will; a
weak or feebleminded person may make a valid
will, provided he has understanding and memory
sufficient to enable him to know what he is about
to do and how or to whom he is disposing of his
property. To constitute a sound and disposing
mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease
or otherwise. It has been held that testamentary
incapacity does not necessarily require that a
person shall actually be insane or of unsound
mind."26
WHEREFORE, the Petition is DENIED, and the
assailed Decision and Resolution of the Court of
Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
EN BANC
G.R. No. L-35993         December 19, 1932
In re Estate of the deceased Gregorio
Tolentino. ADELAIDA TOLENTINO, petitioner-
appellee,
vs. NATALIA FRANCISCO, ET AL., oppositors-
appellants.
STREET, J.:
This petition was filed in the Court of First Instance
of Manila by Adelaida Tolentino de Concepcion, for
the purpose of procuring probate of the will of
Gregorio Tolentino, deceased, who died at the
hand of an assassin, in his home, No. 2541 Lico
Street, in the District of Santa Cruz, Manila, on
November 9, 1930. In the inception of the
proceedings Eugene de Mitkiewicz was appointed
special coadministrator, and he joined as coplaintiff
in the petition. Opposition was made to the probate
of the will by Ciriaco Francisco, Natalia Francisco,
and Gervasia Francisco, all cousins of the deceased
and residents of the City of Manila. Upon hearing
the cause the trial court overruled the opposition,
declared the will to have been properly executed,
and allowed the probate thereof. From this order
the three opponents appealed.
At the time of his death on November 9, 1930,
Gregorio Tolentino was sixty-six years of age.
During the more vigorous years of his life he had
been married to Benita Francisco, but she
predeceased him years ago. By their industry and
frugality the two had accumulated a very
considerable estate which does not appear to have
suffered any material diminution in the years of
Tolentino's widowhood. The pair had no children,
and the generous instincts of the survivor
prompted him to gather around him in his
comfortable and commodious home a number of
his wife's kin; and by him various younger
members of the connection were supported and
educated. At one time Tolentino contemplated
leaving his property mainly to these kin of his wife,
of the surname Francisco; and for several years
prior to his death, he had kept a will indicating this
desire. However, in October, 1930, strained
relations, resulting from grave disagreements,
developed between Tolentino and the Francisco
relations and he determined to make a new will in
which, apart from certain legacies in favor of a few
individuals, the bulk of his estate, worth probably
about P150,000, should be given to Adelaida
Tolentino de Concepcion, as his universal heir.
To this end, on October 17, 1930, Tolentino went to
the office of Eduardo Gutierrez Repide, an attorney
at 97 General Luna, Manila, and informed him that
he wanted to make a new will and desired Repide
to draft12it for him. After the necessary preliminary
inquiries had been made, the attorney suggested
to Tolentino to return later, bringing a copy of the
will previously made. Accordingly, on the second
day thereafter, Tolentino again appeared in
Repide's office with the prior will; and the attorney
proceeded to reduce the new will to proper form.
As the instrument was taking shape Tolentino
stated that he wanted the will to be signed in
Repide's office, with Repide himself as one of the
attesting witnesses. For the other two witnesses
Tolentino requested that two attorneys attached to
the office, namely, Leoncio B. Monzon and Ramon
L. Sunico, should serve. For this reason, in the draft
of the will, as it at first stood, the names of the
three above mentioned were inserted as the
names of the three attesting witnesses.
When the instrument had been reduced to proper
form it was placed in the hands of Tolentino, the
testator, in order that he might take it home to
reflect over its provisions and consider whether it
conformed in all respects to his wishes. On the
morning of October 21 he again appeared in
Repide's office and returned to him the draft of the
will with certain corrections. Among the changes
thus made was the suppression of the names of
Monzon, Sunico, and Repide as attesting witnesses,
these names being substituted by the names of
Jose Syyap, Agustin Vergel de Dios, and Vicente
Legarda. The explanation given by the testator for
desiring this change was that he had met Jose
Syyap on the Escolta, the day before, and had
committed the indiscretion of communicating the
fact that he (Tolentino) was having a new will made
in which Monzon, Sunico, and Repide would appear
as the attesting witnesses. Now Syyap had been
the draftsman of the former will of Tolentino, and
in this same will the name of Syyap appeared as
one of the attesting witnesses, the other two being
Vicente Legarda and Vergel de Dios. When,
therefore, Syyap learned that a new will was being
drawn up without his intervention, he showed
profound disappointment, saying to Tolentino that
he considered it a gross offense that he, Legarda,
and Vergel de Dios should be eliminated as
witnesses to the new will. Upon this manifestation
of feeling by Syyap, Tolentino decided to avail
himself of Syyap, Legarda, and Vergel de Dios as
witnesses to this will also, and he therefore
requested Repide to change the names of the
attesting witnesses. After this point had been
settled Tolentino stated that he would request
Syyap, Legarda, and Vergel de Dios to appear at
the office of Repide for the purpose of signing the
will. To this end Tolentino went away but returned
later saying that he had spoken to Syyap about it
and that the latter strenuously objected, observing
that the will should be signed at a chop-suey
restaurant ( panciteria). Tolentino further stated to
his attorney in this conversation that he had
arranged with Syyap and the other two intending
witnesses to meet at five o'clock in the afternoon
of the next day, which was October 22, for the
purpose of executing the will.
Pursuant to these instructions Repide made the
desired changes in the will; and just before twelve
o'clock noon of the next day Tolentino returned to
Repide's office and received from him the criminal
document with a carbon copy thereof. Repide
advised the testator that the copy should be
executed with the same formality as the original in
order that the intention of the testator should not
be frustrated by the possible loss or destruction of
the original.lawphil.net
It is a custom in the office of Repide not to number
the consecutive pages of a will, on the typewriting
machine, the duty of numbering the pages being
left to the testator himself. This precaution appears
to have been born of experience, and has been
adopted by Repide to prevent the possible
destruction of a will by the mere erasure of the
figures or letters indicating the pagination, — a
disaster which, in Repide's experience, had
occurred in at least one case. Accordingly, upon
delivering the completed will and carbon copy to
the testator, Repide took particular pains to
instruct the testator to write the consecutive
paging of both original and duplicate before signing
the instrument.
At his interview the testator suggested to Repide
that the latter should also go to the place where
the will was to be executed, so that he might be
present at the formality. The attorney replied that
it was impossible for him to do so as he had
another engagement for the hour indicated, which
would prevent his attendance.
At about 4:30 p. m. on the same day, which was
October 22, Tolentino started in his car to pick up
Syyap and Vergel de Dios at their respective
homes on Antipolo and Benavides streets. He then
caused his chauffeur to drive with the three to La
Previsora Filipina, on Rizal Avenue, where Vicente
Legarda, the third intending witness was to be
found. Arriving at this place, the three entered the
office of Legarda, who was manager of the
establishment, and they were invited to take seats,
which they did. Tolentino then suggested that the
three should go as his guests to a panciteria,
where they could take refreshments and the will
could be executed. Legarda replied that he must
decline the invitation for he had an engagement to
go to the Cosmos Club the same afternoon. Upon
this Tolentino asked Legarda to permit the will to
be signed in his office, and to this request Legarda
acceded.
Tolentino thereupon drew two documents from his
pocket saving that it was his last will and
testament, done in duplicate, and he proceeded to
read the original to the witnesses. After this had
been completed, Legarda himself took the will in
hand and read it himself. He then returned it to
Tolentino, who thereupon proceeded, with pen and
ink, to number the pages of the will thus, "Pagina
Primera", "Pagina Segunda", etc. He then paged
the duplicate copy of the will in the same way. He
next proceeded to sign the original will and each of
its pages by writing his name "G. Tolentino" in the
proper places. Following this, each of the three
witnesses signed their own respective names at
the end of the will, at the end of the attesting
clause, and in the left margin of each page of the
instrument. During this ceremony all of the persons
concerned in the act of attestation were present
together, and all fully advertent to the solemnity
that engaged their attention.
After the original of the will had been executed in
the manner just stated, the testator expressed his
desire that the duplicate should be executed in the
same manner. To this Syyap objected, on the
ground13that it was unnecessary; and in this view he
was supported by Vergel de Dios, with the result
that the wishes of the testator on this point could
not be carried out. As the party was about to break
up Tolentino used these words: "For God's sake, as
a favor, I request you not to let any one know the
contents of this will." The meeting then broke up
and Tolentino returned Syyap and Vergel de Dios
to their homes in his car. He then proceeded to the
law office of Repide, arriving about 6:15 p. m. After
preliminary explanations had been made, Tolentino
requested Repide to keep the will overnight in his
safe, as it was already too late to place it in the
compartment which Tolentino was then renting in
the Oriental Safe Deposit, in the Kneedler Building.
In this connection the testator stated that he did
not wish to take the will to his home, as he knew
that his relatives were watching him and would
take advantage of any carelessness on his part to
pry into his papers. Also, in this conversation
Tolentino informed Repide of the refusal of Syyap
to execute the duplicate of the will.
After a good part of an hour had thus been spent at
Repide's office by the testator and after the
original of the will had been deposited in Repide's
safe, Tolentino took the attorney to the latter's
residence in Ermita, and then returned to his own
home, where he remained without again going out
that night. But promptly at nine o'clock the next
morning Tolentino presented himself at Repide's
office for the purpose of securing the will. Repide
happened to be out and Tolentino went away, but
again returned the next day and received the will.
With the instrument thus in his possession he
proceeded at once to the Oriental Safe Deposit and
there left the instrument in his private
compartment, No. 333, in which place it remained
until withdrawn some two weeks later by order of
the court.
On the morning of November 9, 1930, Gregorio
Tolentino was found dead in his bed, having
perished by the hands of an assassin.
The peculiarity of this case is that, upon the trial of
this proceeding for the probate of the will of the
decedent, two of the attesting witnesses, Jose
Syyap and Vergel de Dios, repudiated their
participation in the execution of the will at the time
and place stated; and while admitting the
genuineness of their signatures to the will,
pretended that they had severally signed the
instrument, at the request of the testator, at
different places. Thus Syyap, testifying as a
witness, claimed that the testator brought the will
to Syyap's house on the afternoon of October 21 —
a time, be it remembered, when the will had not
yet left the hands of the draftsman — and upon
learning that Syyap could not be present at the
time and place then being arranged for the
execution of the will, he requested Syyap, as a
mere matter of complaisance, to sign the will then,
which Syyap did. Vergel de Dios has another story
to tell of isolated action, claiming that he signed
the will in the evening of October 22 at the Hospital
of San Juan de Dios in Intramuros.
We are unable to give any credence to the
testimony of these two witnesses on this point, the
same being an evident fabrication designed for the
purpose of defeating the will. In the first place, the
affirmative proof showing that the will was properly
executed is adequate, consistent, and convincing,
consisting of the testimony of the third attesting
witness, Vicente Legarda, corroborated by Miguel
Legarda and Urbana Rivera, two disinterested
individuals, employees of La Previsora Filipina, who
were present in Legarda's office when the will was
executed and who lent a discerning attention to
what was being done. In the second place, each of
the seven signatures affixed to his will by Syyap
appear to the natural eye to have been made by
using the same pen and ink that was used by
Legarda in signing the will. The same is also
probably true of the seven signatures made by
Vergel de Dios. This could hardly have happened if
the signatures of Syyap and Vergel de Dios had
been affixed, as they now pretend, at different
times and places. In the third place, Both Syyap
and Vergel de Dios are impeached by proof of
contradictory statements made by them on
different occasions prior to their appearance as
witnesses in this case. In this connection we note
that, after the murder of Gregorio Tolentino, and
while the police authorities were investigating his
death, Nemesio Alferez, a detective, sent for Syyap
and questioned him concerning his relations with
the deceased. Upon this occasion Syyap stated
that Gregorio Tolentino had lately made a will, that
it had been executed at the office of La Previsora
Filipina under the circumstances already stated,
and that he himself had served as one of the
attesting witnesses.
With respect to Vergel de Dios we have the
following fact: On the day that Gregorio Tolentino
was buried, Ramon Llorente, a member of the city
police force, was sent out to the cemetery in order
that he might be present and observe the
demeanor on that occasion of such Tolentino's kin
as might be present. Llorente arrived before the
funeral cortege, having been taken out to the
cemetery by Repide. While the two were waiting at
the cemetery, Llorente noted the presence of
Vergel de Dios, he requested the policeman to
introduce him. In the conversation that ensued
Vergel de Dios stated with considerable detail that
Gregorio Tolentino had made a will just before his
death, that it was executed at La Previsora Filipina,
and that he was one of the witnesses who attested
the instrument at that time and place.
Again, on a certain occasion subsequent to the
death of Gregorio Tolentino, Juan Concepcion the
husband of Adelaida Tolentino, accompanied by
Genoveva de Mendoza, called upon Vergel de Dios,
and in the conversation that resulted Vergel de
Dios told them that the will was properly executed,
that he was one of the attesting witnesses, and
that it had been signed by all of them in the office
of La Previsora Filipina.
These circumstances and other incidents revealed
in the proof leave no room for doubt in our mind
that Syyap and Vergel de Dios have entered into a
conspiracy between themselves, and in concert
with the opponents, to defeat the will of Gregorio
Tolentino although they are well aware that said
will was in all respects properly executed; and the
trial court, in our opinion, committed no error in
admitting the will to probate.
When a will is contested it is the duty of the
proponent to call all of the attesting witnesses, if
available but the validity of the will in no wise
depends upon the united support of the will by all
of those14 witnesses. A will may be admitted to
probate notwithstanding the fact that one or more
of the subscribing witnesses do not unite with the
other, or others, in proving all the facts upon which
the validity of the will rests.
(Fernandez vs. Tantoco, 49 Phil., 380.) It is
sufficient if the court is satisfied from all the proof
that the will was executed and attested in the
manner required by law. In this case we feel well
assured that the contested will was properly
executed and the order admitting to it probate was
entirely proper.
The order appealed from will therefore be affirmed,
with costs against the appellants. So ordered.
EN BANC
G.R. No. L-20374             October 11, 1923
In re of Dolores Coronel, deceased.
LORENZO PECSON, applicant-appellee,
vs. AGUSTIN CORONEL, ET AL., opponents-
appellants.
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance
of Pampanga probated as the last will and
testament of Dolores Coronel, the document
Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua,
Pampanga, Philippine Islands, in the full exercise of
my mental faculties, do hereby make my last will
and testament, and revoke all former wills by me
executed.
I direct and order that my body be buried in
conformity with my social standing.
That having no forced heirs, I will all my properties,
both movable and immovable, to my nephew,
Lorenzo Pecson, who is married to my niece Angela
Coronel, in consideration of the good services with
he has rendered, and is rendering to me with good
will and disinterestedness and to my full
satisfaction.
I name and appoint my aforesaid nephew, Lorenzo
Pecson, executor of all that is willed and ordained
in this my will, without bond. Should he not be able
to discharge his duties as such executor for any
reason whatsoever, I name and appoint as
substitute executor my grandson Victor Pecson, a
native and resident of the town of Betis, without
requiring him to give bond. 
All my real and paraphernal property as well as my
credits for I declare that I have no debts, are
specified in an inventory.
In testimony whereof and as I do not know how to
write my name, I have requested Vicente J.
Francisco to write my name at the foot hereof and
on the left margin of each of its sheet before me
and all the undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO           Coronel, Dionisia Coronel, and her husband
"For the testatrix Dolores Coronel
The foregoing document was executed and
declared by Dolores Coronel to be her last will and
testament in our presence, and as the testatrix
does not know how to write her name, she
requested Vicente J. Francisco to sign her name
under her express direction in our presence, at the
foot, and on the left margin of each and every
sheet, hereof. In testimony whereof, each of us
signed these presents in the presence of others
and of the testatrix at the foot hereof and on the
margin of each and everyone of the two sheets of
which this document is composed, which are
numbered "one" and "two" on the upper part of the
face thereof.
(Sgd.)           "MAXIMO VERGARA           SOTERO
DUMAUAL           MARCOS DE LOS SANTOS
                      MARIANO L. CRISOSTOMO           Let us examine the first point.
PABLO BARTOLOME           MARCOS DE LA CRUZ    
DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the
following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the
testatrix Dolores Coronel, M. Vergara, Pablo
Bartolome, Sotero Dumaual Crisostomo, Marcos de
la Cruz, Marcos de los Santos.
The petitioner for the probate of the will is Lorenzo
Pecson, husband of Angela Coronel, who is a niece
of the deceased Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel,
Julian Gozum, Cirila Santiago, widow of the
deceased Macario Gozum, in her own behalf and
that of her three minor children, Hilarion Coronel,
Geronimo Coronel, Maria Coronel and her husband
Eladio Gongco, Juana Bituin, widow of the deceased
Hipolito Coronel, in her own behalf and that of her
three children, Generosa, Maria, and Jose, all
minors, Rosario Coronel, Agustin Coronel, Filomeno
Coronel, Casimiro Coronel, Alejo Coronel, Maria
Coronel, Severina Coronel, Serapia Coronel, Maria
Juana de Ocampo, widow of the deceased Manuel
Pantaleon Gunlao.
The probate of this will is impugned on the
following grounds: (a) That the proof does not that
the document Exhibit A above copied contains the
last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the
provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
These are the two principal questions which are
debated in this case and which we will now
examine separately.
As to the first, which is the one raised in the first
assignment of error, the appellants argue: First,
that it was improbable and exceptional that
Dolores Coronel should dispose of her estate, as
set forth in the document Exhibit A, her true being
that the same be distributed among her blood
relatives; and second, that if such will not
expressed in fact, it was due to extraneous illegal
influence.
The opponents contend that it was not, nor could it
be, the will of the testatrix, because it is not
natural nor usual that she should completely
exclude her blood relatives from her vast estate, in
order to will the same to one who is only a relative
by affinity, there appearing no sufficient motive for
such exclusion, inasmuch as until the death of
Dolores Coronel, she maintained very cordial
relations with the aforesaid relatives who had
helped her in the management and direction of her
lands. It15appears, however, from the testimony of
Attorney Francisco (page 71, transcript of the
stenographic notes) that Dolores Coronel revealed
to him her suspicion against some of her nephews
as having been accomplices in a robbery of which
she had been a victim.
As to whether or not Lorenzo Pecson rendered
services to Dolores Coronel, the opponents admit
that he rendered them at least from the year 1914,
although there is proof showing that he rendered
such services long before that time.
The appellants emphasize the fact that family ties
in this country are very strongly knit and that the
exclusion of relative one's estate an exceptional
case. It is true that ties of relationship in the
Philippines are very strong, but we understand that
cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of
one's estate by will when there are no forced heirs
is rendered sacred by the civil Code in force in the
Philippines since 1889. It is so provided in the first
paragraph of article in the following terms:
Any person who was no forced heirs may dispose
by will of all his property or any part of it in favor of
any person qualified to acquire it.”
Even ignoring the precedents of this legal precept,
the Code embodying it has been in force in the
Philippines for more than a quarter of a century,
and for this reason it is not tenable to say that the
excercise of the liberty thereby granted is
necessarily exceptional, where it is not shown that
the inhabitants of this country whose customs
must have been take into consideration by the
legislator in adopting this legal precept, are averse
to such a liberty.
As to preference given to Lorenzo Pecson, it is not
purely arbitrary, nor a caprice or a whim of the
moment. The proof adduced by this appelle,
although contradicted, shows by a preponderance
of evidence that besides the services which the
opponents admit had been rendered by him to
Dolores Coronel since the year 1914, he had also
rendered services prior to that time and was the
administrator and manager of the affairs of said
Dolores in the last years of her life. And that this
was not a whim of the moment is shown by the fact
that six years before the execution of the will in
question, said Lorenzo Pecson was named and
appointed by Dolores Coronel as her sole heir in
the document Exhibit B, which, translated, is as
follows:
1. That my present property was acquired by me
by inheritance from my parents, but a great part
thereof was acquired by me by my own efforts and
exertions;
2. That I have made no inventory of my properties,
but they can be seen in the title deeds in my
possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to
Angela Coronel, and a known resident of the town,
my heir to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as
executor, and, in his default, Victor Pecson, a
resident of the same town;
5. That as to my burial and other things connected
with the eternal rest of my soul, I leave them to the
sound direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin
Pangilinan, a native and resident of this town, to
write this will in accordance with my wishes and
precise instructions.
In testimony whereof I had the said Martin
Pangilinan write my name and surname, and
affixed my mark between my name and surname,
and don Francisco Dumaual, Don Mariano Sunglao,
Don Sotero Dumaual, Don Marcos de la Cruz and
Don Martin Pangilinan signed as witnesses, they
having been present at the beginning of, during,
and after, the execution of this my last will.
(Sgd.)          "DOLORES CORONEL           unjust. Nothing can prevent the testator from
Witnesses:
(Sgd.)          "MARIANO SUNGLAO
                    MARCOS DE LA CRUZ
                    FRANCISCO DUMAUAL
                    SOTERO DUMAUAL
                    MARTIN PANGILINAN"
The appellants find in the testament Exhibit B
something to support their contention that the
intention of Dolores Coronel was to institute the
said Pecson not as sole beneficiary, but simply as
executor and distributor of all her estate among
her heirs, for while Lorenzo Pecson's contention
that he was appointed sold beneficiary is based on
the fact that he enjoyed the confidence of Dolores
Coronel in 1918 and administered all her property,
he did not exclusively have this confidence and
administration in the year 1912. Although such
administration and confidence were enjoyed by
Pecson always jointly with others and never
exclusively, this fact does not show that the will of
the testatrix was to appoint Pecson only as
executor and distributor of her estate among the
heirs, nor does it prevent her, the testatrix, from
instituting him in 1912 or 1918 as sole beneficiary;
nor does it constitute, lastly, a test for determining
whether or not such institution in favor of Pecson
was the true will of the testatrix.
We find, therefore, nothing strange in the
preterition made by Dolores Coronel of her blood
relatives, nor in the designation of Lorenzo Pecson
as her sole beneficiary. Furthermore, although the
institution of the beneficiary here would not seem
the most usual and customary, still this would not
be null per se.
In the absence of any statutory restriction every
person possesses absolute dominion over his
property, and may bestow it upon whomsoever he
pleases without regard to natural or legal claim
upon his bounty. If the testator possesses the
requisite capacity to make a will, and the
disposition of his property is not affected by fraud
of undue influence, the will is not rendered invalid
by the fact that it is unnatural, unreasonable, or
making a will as eccentric, as injudicious, or as
unjust as caprice, frivolity, or revenge can dictate.
However, as has already been shown, the
unreasonable or unjustice of a will may be
considered on the question of testamentary
capacity. (40 Cyc., 1079.)
The testamentary
16 capacity of Dolores Coronel is
not disputed in this case.
Passing to the second question, to wit, whether or
not the true last will of Dolores Coronel was
expressed in the testament Exhibit A, we will begin
with expounding how the idea of making the
aforesaid will here controverted was borne and
carried out.
About the year 1916 or 1917, Dolores showed the
document Exhibit B to Attorney Francisco who was
then her legal adviser and who, considering that in
order to make the expression of her last will more
legally valid, though it necessary that the
statement be prepared in conformity with the laws
in force at time of the death of the testatrix, and
observing that the will Exhibit B lacked the
extrinsic formalities required by Act No. 2645
enacted after its execution, advised Dolores
Coronel that the will be remade. She followed the
advice, and Attorney Francisco, after receiving her
instructions, drew the will Exhibit A in accordance
therewith, and brought it to the house of Dolores
Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel
in her presence and that of the witnesses and
asked her whether the will was in accordance with
her wishes. Dolores Coronel answer that it was,
and requested her attorney, Mr. Francisco, to sign
the will for her, which the attorney accordingly did
in the presence of the witnesses, who in turn
signed it before the testatrix and in the presence of
each other.
Upon the filing of the motion for a rehearing on the
first order allowing the probate of the will, the
opponents presented an affidavit of Pablo
Bartolome to the effect that, following instructions
of Lorenzo Pecson, he had informed the testatrix
that the contents of the will were that she
entrusted Pecson with the distribution of all her
property among the relatives of the said Dolores.
But during the new trial Pablo Bartolome, in spite
of being present in the court room on the day of
the trial, was not introduced as a witness, without
such an omission having been satisfactorily
accounted for.
While it is true that the petitioner was bound to
present Pablo Bartolome, being one of the
witnesses who signed the will, at the second
hearing when the probate was controverted, yet
we cannot consider this point against the appellee
for this was not raised in any of the assignments of
error made by the appellants. (Art. 20, Rules of the
Supreme Court.)
On the other hand, it was incumbent upon the
opponents to present Pablo Bartolome to prove
before the court the statement by him in his
affidavit, since it was their duty to prove what they
alleged, which was that Dolores Coronel had not
understood the true contents of the will Exhibit A.
Having suppressed, without explanation, the
testimony of Pablo Bartolome, the presumption is
against the opponents and that is, that such a
testimony would have been adverse had it been
produced at the hearing of the case before the
court. (Sec 334, subsec. 5, Code of Civil
Procedure.)
The opponents call our attention to the fourth
clause of the document which says: "I name and
appoint my aforesaid nephew, Lorenzo Pecson,
executor of all that is willed and ordained in this
my will, without bond. Should he not be able to
discharge his duties as such executor for any
reason whatsoever, I name and appoint as a
substitute executor my grandson Victor Pecson,
resident of the town of Betis, without requiring him
to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as
sole beneficiary of all her estate, for if such was the
intention of the testatrix, there would have been no
necessity of appointing an executor, nor any
reason for designating a substitute in case that the
first one should not be able to discharge his duties,
and they perceived in this clause the idea which,
according to them, was not expressed in the
document, and which was that Pecson was simply
to be a mere executor entrusted with the
distribution to the estate among the relatives of
the testatrix, and that should he not be able to do
so, this duty would devolved upon his substitutes.
But it is not the sole duty of an executor to
distribute the estate, which in estate succession,
such as the instant case, has to be distributed with
the intervention of the court. All executor has,
besides, other duties and general and special
powers intended for the preservation, defense, and
liquidation of the estate so long as the same has
not reached, by order of the court, the hands of
those entitled thereto.
The fact that Dolores Coronel foresaw the necessity
of an executor does not imply a negation of her
desire to will all her estate to Lorenzo Pecson. It is
to be noted, furthermore, that in the will, it was
ordered that her body be given a burial in
accordance with her social standing and she had a
perfect right to designate a person who should see
to it that this order was complied with. One of the
functions of an executor is the fulfillment of what is
ordained in the will.
It is argued that the will of the testatrix was to will
her estate to her blood relatives, for such was the
promise made to Maria Coronel, whom Rosario
Coronel tends to corroborate. We do not find such
a promise to have been sufficiently proven, and
much less to have been seriously made and
coupled with a positive intention on the part of
Dolores Coronel to fulfill the same. In the absence
of sufficient proof of fraud, or undue influence, we
cannot take such a promise into account, for even
if such a promise was in fact made, Dolores
Coronel could retract or forget it afterwards and
dispose of her estate as she pleased. Wills
themselves, which contain more than mere
promises, are essentially revocable.
It is said that the true will of Dolores Coronel not
expressed in the will can be inferred from the
phrase used by Jose M. Reyes in his deposition
when speaking of the purpose for which Lorenzo
Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate
in the most appropriate manner
Weight is given to this phrase from the
circumstance that its author was requested by
Attorney Francisco to explain the contents of
Exhibit B and had acted as interpreter between
Dolores17Coronel and Attorney Francisco at their
interviews previous to the preparation of Exhibit A,
and had translated into the Pampango dialect this
last document, and, lastly, was present at the
execution of the will in question.
The disputed phrase "in order that the latter might
dispose of the estate in the most appropriate
manner" was used by the witness Reyes while sick
in a hospital and testifying in the course of the
taking of his deposition.
The appellants interpret the expression "dispose in
the most appropriate manner" as meaning to say
"distribute it among the heirs." Limiting ourselves
to its meaning, the expression is a broad one, for
the disposition may be effected in several and
various ways, which may not necessarily be a
"distribution among the heirs," and still be a
"disposition in the most appropriate manner." "To
dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the
circumstances under which it was used must be
taken into account in this particular instance. The
witness Reyes, the author of the phrase, was not
expressing his own original ideas when he used it,
but was translating into Spanish what Dolores
Coronel had told him. According to the facts, the
said witness is not a Spaniard, that is to say, the
Spanish language is not his native tongue, but,
perhaps, the Pampango dialect. It is an admitted
fact based on reason and experience that when a
person translates from one language to another, it
is easier for him to express with precision and
accuracy when the version is from a foreign
language to a native one than vice-versa. The
witness Reyes translated from the Pampango
dialect, which must be more familiar to him, to the
Spanish language which is not his own tongue. And
judging from the language used by him during his
testimony in this case, it cannot be said that this
witness masters the Spanish language. Thus is
explained the fact that when asked to give the
reason for the appointment of an executor in the
will, he should say at the morning session
that "Dolores Coronel did appoint Don Lorenzo
Pecson and in his default, Victor Pecson, to act
during her lifetime, but not after he death," which
was explained at the afternoon session by
saying "that Dolores Coronel did appoint Don
Lorenzo Pecson executor of all her estate during
his lifetime and that in his default, either through
death or incapacity, Mr. Victor Pecson was
appointed executor." Taking into account all the
circumstances of this witness, there is ground to
attribute his inaccuracy as to the discharge of the
duties of an executor, not to ignorance of the
elementary rule of law on the matter, for the
practice of which he was qualified, but to a non-
mastery of the Spanish language. We find in this
detail of translation made by the witness Reyes no
sufficient reason to believe that the will expressed
by Dolores Coronel at the said interview with
Attorney Francisco was to appoint Lorenzo Pecson
executor and mere distributor of her estate among
her heirs.
As to whether or not the burden of proof was on
the petitioner to establish that he was the sole
legatee to the exclusion of the relatives of Dolores
Coronel, we understand that it was not his duty to
show the reasons which the testatrix may have had
for excluding her relatives from her estate, giving
preference to him. His duty was to prove that the
will was voluntary and authentic and he, who
alleges that the estate was willed to another, has
the burden of proving his allegation.
Attorney Francisco is charged with having
employed improper means of making Lorenzo
Pecson appear in the will as sole beneficiary.
However, after an examination of all the
proceedings had, we cannot find anything in the
behavior of this lawyer, relative to the preparation
and execution of the will, that would justify an
unfavorable conclusion as to his personal and
professional conduct, nor that he should harbor
any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in
advising Dolores Coronel to make a new will other
than the last one, Exhibit B (in the drawing of
which he does not appear to her intervened), so
that the instrument might be executed with all the
new formalities required by the laws then in force;
nor in the preparation of the new will substantially
in accordance with the old one; nor in the selection
of attesting witnesses who were persons other than
the relatives of Dolores Coronel. Knowing, as he
did, that Dolores was excluding her blood relatives
from the inheritance, in spite of her having been
asked by him whether their exclusion was due to a
mere inadvertence, there is a satisfactory
explanation, compatible with honorable conduct,
why said attorney should prescind from such
relatives in the attesting of the will, to the end that
no obstacle be placed in the way to the probating
thereof.
The fact that this attorney should presume that
Dolores was to ask him to sign the will for her and
that he should prepare it containing this detail is
not in itself fraudulent. There was in this case
reason so to presume, and it appears that he asked
her, through Pablo Bartolome, whom she wanted to
sign the document in her stead.
No imputation can be made to this attorney of any
interest in favoring Lorenzo Pecson in the will,
because the latter was already his client at the
execution of said will. Attorney Francisco denied
this fact, which we cannot consider proven after
examining the evidence.
The conduct observed by this attorney after the
death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson
and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that
an heir different from the true one intended by the
testatrix should have been fraudulently made to
appear instituted in the will exhibit A. His attitude
towards the opponents, as can be gathered from
the proceedings and especially from his letter
Exhibit D, does not show any perverse or
fraudulent intent, but rather a conciliatory purpose.
It is said that such a step was well calculated to
prevent every possible opposition to the probate of
the will. Even admitting that one of his objects in
entering into such negotiations was to avoid every
possible to the probate of the will, such object is
not incompatible with good faith, nor does it
necessarily justify the inference that the heir
instituted in the instrument was not the one whom
the testatrix wanted appointed.
The appellants
18 find rather suspicious the interest
shown by the said attorney in trying to persuade
Lorenzo Pecson to give them some share of the
estate. These negotiations were not carried out by
the attorney out of his own initiative, but at the
instance of the same opponent, Agustin Coronel,
made by the latter in his own behalf and that of his
coopponents.
As to Lorenzo Pecson, we do not find in the record
sufficient proof to believe that he should have
tried, through fraud or any undue influence, to
frustrate the alleged intention of the testatrix to
leave her estate to her blood relatives. The
opponents insinuate that Lorenzo Pecson employed
Attorney Francisco to carry out his reproachable
designs, but such depraved instrumentality was
not proven, nor was it shown that said lawyer, or
Lorenzo Pecson, should have contrived or put into
execution any condemnable plan, nor that both
should have conspired for illegal purposes at the
time of the preparation and execution of the will
Exhibit A.
Although Norberto Paras testified having heard,
when the will was being read to Dolores Coronel,
the provision whereby the estate was ordered
distributed among the heirs, the preponderance of
the evidence is to the effect that said Norberto
Paras was not present at such reading of the will.
Appellant do not insist on the probative force of the
testimony of this witness, and do not oppose its
being stricken out.
The data furnished by the case do not show, to our
mind, that Dolores Coronel should have had the
intention of giving her estate to her blood relatives
instead of to Lorenzo Pecson at the time of the
execution of the will Exhibit A, nor that fraud or
whatever other illegal cause or undue influence
should have intervened in the execution of said
testament. Neither fraud nor evil is presumed and
the record does not show either.
Turning to the second assignment of error, which is
made to consist in the will having been probated in
spite of the fact that the attestation clause was not
in conformity with the provision of section 618 of
the Code of Civil Procedure, as amended by Act No.
2645, let us examine the tenor of such clause
which literally is as follows:
The foregoing document was executed and
declared by Dolores Coronel to be her last will
testament in our presence, and as testatrix does
not know how to write her name, she requested
Vicente J. Francisco to sign her name under her
express direction in our presence at the foot and
on the left margin of each and every sheet hereof.
In testimony whereof, each of us signed these
presents in the presence of others of the testatrix
at the foot hereof and on the margin of each and
everyone of the two pages of which this document
is composed. These sheets are numbered
correlatively with the words "one and "two on the
upper part of the face thereof.
(Sgd.)          "Maximo Vergara,          Sotero
Dumaual,          Marcos de los Santos,         
Mariano L. Crisostomo,           Pablo Bartolome,           others and" are present. Then, what for are they
Marcos de la Cruz,           Damian Crisostomo."
Appellants remark that it is not stated in this clause
that the will was signed by the witnesses in the
presence of the testatrix and of each other, as
required by section 618 of the Code of Civil
Procedure, as amended, which on this particular
point provides the following:
The attestation shall state the number of sheets or
pages used, upon which the will is written, and the
fact that the testator signed the will and every
page thereof, or caused some other person to write
his name, under his express direction, in the
presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof
in the presence of the testator and of each other.”
Stress is laid on the phrase used in the attestation
clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to
the expression "of others." One, that insinuated by
the appellants, namely, that it is equivalent to "of
other persons," and the other, that contended by
the appellee, to wit, that the phrase should be held
to mean "of the others," the article "the" having
inadvertently been omitted.
Should the first interpretation prevail and "other
persons" be taken to mean persons different from
the attesting witnesses, then one of the
solemnities required by law would be lacking.
Should the second be adopted and "of
others" construed as meaning the other witnesses
to the will, then the law would have been complied
with in this respect.
Including the concomitant words, the controverted
phrase results thus: "each of us signed these
presents in the presence of others and of the
testatrix."
If we should omit the words "of others and," the
expression would be reduced to "each of us signed
these presents in the presence of the
testatrix," and the statement that the witnesses
signed each in the presence of the others would be
lacking. But as a matter of fact, these words "of
there? Is it to say that the witnesses signed in the
presence of other persons foreign to the execution
of the will, which is completely useless and to no
purpose in the case, or was it for some useful,
rational, necessary object, such as that of making
it appear that the witnesses signed the will each in
the presence of the others? The first theory
presupposes that the one who drew the will, who is
Attorney Francisco, was an unreasonable man,
which is an inadmissible hypothesis, being
repugnant to the facts shown by the record. The
second theory is the most obvious, logical and
reasonable under the circumstances. It is true that
the expression proved to be deficient. The
deficiency may have been caused by the drawer of
the will or by the typist. If by the typist, then it
must be presumed to have been merely accidental.
If by the drawer, it is explainable taking into
account that Spanish is not only not the native
language of the Filipinos, who, in general, still
speak until nowadays their own dialects, but also
that such language is not even the only official
language since several years ago.
In Re will of Abangan (40 Phil., 476), this court
said:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and
19 fraud, to avoid substitution of wills and
testaments and to guarantee 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 requisite entirely
unnecesary, useless and frustrative of the
testator's last will, must be disregarded.
We believe it to be more reasonable to construe
the disputed phrase "of others" as meaning "of the
other witnesses," and that a grammatical or
clerical error was committed consisting in the
omission of the article "the".
Grammatical or clerical errors are not usually
considered of vital importance when the intention
is manifest in the will.
The court may correct clerical mistakes in writing,
and disregard technical rules of grammar as to the
construction of the language of the will when it
becomes necessary for it to do so in order to
effectuate the testators manifest intention as
ascertained from the context of the will. But unless
a different construction is so required the ordinary
rules of grammar should be adhered to in
construing the will. (40 Cyc., 1404).
And we understand that in the present case the
interpretation we adopt is imperative, being the
most adequate and reasonable.
The case of In the matter of the estate of Geronima
Uy Coque (43 Phil., 405), decided by this court and
invoked by the appellants, refers so far as
pertinent to the point herein at issue, to an
attestation clause wherein the statement that the
witnesses signed the will in the presence of each
other is totally absent. In the case at bar, there is
the expression "in the presence of others" whose
reasonable interpretation is, as we have said, "in
the presence of the other witnesses." We do not
find any party between the present case and that
of Re Estate of Geronima Uy Coque above cited.
Finally, we will take up the question submitted by
the opponents as to the alleged insufficiency of the
evidence to show that the attesting witnesses
Damian Crisostomo and Sotero Dumaual were
present at the execution of the will in controversy.
Although this point is raised in the first assignment
of error made by the appellants, and not in the
second, it is discussed in this place because it
refers to the very fact of attestation. However, we
do not believe it necessary to analyze in detail the
evidence of both parties on this particular point.
The evidence leads us to the conclusion that the
two witnesses aforementioned were present at the
execution and signing of the will. Such is also the
conclusion of the trial judge who, in this respect,
states the following, in his decision:
As to the question of whether or not the testatrix
and witnesses signed the document Exhibit A in
accordance with the provisions of law on the
matter, that is, whether or not the testatrix signed
the will, or caused it to be signed, in the presence
of the witnesses, and the latter in turn signed in
her presence and that of each other, the court,
after observing the demeanor of the witnesses for
both parties, is of the opinion that those for the
petitioner spoke the truth. It is neither probable nor
likely that a man versed in the law, such as
Attorney Francisco, who was present at the
execution of the will in question, and to whose
conscientiousness in the matter of compliance with
all the extrinsic formalities of the execution of a
will, and to nothing else, was due the fact that the
testatrix had cancelled her former will (Exhibit B)
and had new one (Exhibit A) prepared and
executed, should have consented the omission of
formality compliance with which would have
required little or no effort; namely, that of seeing to
it that the testatrix and the attesting witnesses
were all present when their respective signatures
were affixed to the will." And the record does not
furnish us sufficient ground for deviating from the
line reasoning and findings of the trial judge.
In conclusion we hold that the assignments of error
made by the appellants are not supported by the
evidence of record.
The judgment appealed from if affirmed with costs
against the appellants. So ordered.
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs. HON. INTERMEDIATE APPELLATE COURT
(Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON,
respondents.
PARAS, J.:
This is a petition for review on certiorari of the
decision * of respondent. Court of Appeals in AC-
G.R. SP No. 05744 promulgated on August 30,
1985 (Rollo, p. 108) ordering the dismissal of the
petition in Special Proceedings No, 591 ACEB and
its Resolution issued on October 23, 1985 (Rollo, p.
72) denying respondents' (petitioners herein)
motion for reconsideration.
The dispositive portion of the questioned decision
reads as follows:
WHEREFORE, the petition is hereby granted and
respondent Regional Trial Court of the Seventh
Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special
pronouncement is made as to costs.
The antecedents of the case, based on the
summary of the Intermediate Appellate Court, now
Court of Appeals, (Rollo, pp. 108-109) are as
follows:
On May 29, 1984 petitioner Constantino Acain filed
on the Regional Trial Court of Cebu City Branch XIII,
a petition for the probate of the will of the late
Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, docketed as
Special Proceedings No. 591 ACEB (Rollo, p. 29), on
the premise that Nemesio Acain died leaving a will
in which petitioner and his brothers Antonio, Flores
and Jose and his sisters Anita, Concepcion, Quirina
and Laura were instituted as heirs. The will
allegedly executed by Nemesio Acain on February
17, 1960 was written in Bisaya (Rollo, p. 27) with a
translation in English (Rollo, p. 31) submi'tted by
petitioner without objection raised by private
respondents. The will contained provisions on
burial rites, payment of debts, and the
appointment
20 of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament. On
the disposition of the testator's property, the will
provided:
THIRD: All my shares that I may receive from our
properties. house, lands and money which I earned
jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN
Filipino, widower, of legal age and presently
residing at 357-C Sanciangko Street, Cebu City. In
case my brother Segundo Acain pre-deceased me,
all the money properties, lands, houses there in
Bantayan and here in Cebu City which constitute
my share shall be given to me to his children,
namely: Anita, Constantino, Concepcion, Quirina,
laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it
is the children of Segundo who are claiming to be
heirs, with Constantino as the petitioner in Special
Proceedings No. 591 ACEB
After the petition was set for hearing in the lower
court on June 25, 1984 the oppositors (respondents
herein Virginia A. Fernandez, a legally adopted
daughter of tile deceased and the latter's widow
Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner
has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and
(3) the widow and the adopted daughter have been
pretirited. (Rollo, p. 158). Said motion was denied
by the trial judge.
After the denial of their subsequent motion for
reconsideration in the lower court, respondents
filed with the Supreme Court a petition for
certiorari and prohibition with preliminary
injunction which was subsequently referred to the
Intermediate Appellate Court by Resolution of the
Court dated March 11, 1985 (Memorandum for
Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted
private respondents' petition and ordered the trial
court to dismiss the petition for the probate of the
will of Nemesio Acain in Special Proceedings No.
591 ACEB
His motion for reconsideration having been denied,
petitioner filed this present petition for the review
of respondent Court's decision on December 18,
1985 (Rollo, p. 6). Respondents' Comment was
filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due
course to the petition (Rollo, p. 153). Respondents'
Memorandum was filed on September 22, 1986
(Rollo, p. 157); the Memorandum for petitioner was
filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum
for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for
certiorari and prohibition with preliminary
injunction is not the proper remedy under the
premises;
(B) The authority of the probate courts is limited
only to inquiring into the extrinsic validity of the
will sought to be probated and it cannot pass upon
the intrinsic validity thereof before it is admitted to
probate;
(C) The will of Nemesio Acain is valid and must
therefore, be admitted to probate. The preterition
mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the
direct line," and does not apply to private
respondents who are not compulsory heirs in the
direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the
testator says will be the law;
(E) There may be nothing in Article 854 of the New
Civil Code, that suggests that mere institution of a
universal heir in the will would give the heir so
instituted a share in the inheritance but there is a
definite distinct intention of the testator in the case
at bar, explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the legal
interest and standing to file the petition in Sp. Proc.
No. 591 ACEB for probate of the will of Nemesio
Acain and
(G) Article 854 of the New Civil Code is a bill of
attainder. It is therefore unconstitutional and
ineffectual.
The pivotal issue in this case is whether or not
private respondents have been pretirited.
Article 854 of the Civil Code 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 devisees and
legacies shall be valid insofar as they are not;
inofficious.
If the omitted compulsory heirs should die before
the testator, the institution shall he effectual,
without prejudice to the right of representation.”
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 (Nuguid v.
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]). Insofar as the
widow is concerned, Article 854 of the Civil Code
may not apply as she does not ascend or descend
from the testator, although she is a compulsory
heir. Stated otherwise, even if the surviving spouse
is a compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is not
in the direct line. (Art. 854, Civil code) however,
the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal
adoption by the testator has not been questioned
by petitioner (.Memorandum for the Petitioner, pp.
8-9). Under Article 39 of P.D. No. 603, known as the
Child and Youth Welfare Code, adoption gives to
the adopted person the same rights and duties as
if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally
omitted and preterited in the will of the testator
and that both adopted child and the widow were
deprived21 of at least their legitime. Neither can it be
denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the
legally adopted child.
Pretention annuls the institution of an heir and
annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtual de legado mejora o
donacion" Maniesa as cited in Nuguid v.
Nuguid, supra; Maninang v. Court of Appeals, 114
SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises
made in the will for they should stand valid and
respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with
his brothers and sisters to the entire inheritance of
the testator results in totally abrogating the will
because the nullification of such institution of
universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in
clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having
been provided in the will the whole property of the
deceased has been left by universal title to
petitioner and his brothers and sisters. The effect
of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated
above, be respected.
We now deal with another matter. In order that a
person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate,
or in the will, or in the property to be affected by it
either as executor or as a claimant of the estate
and an interested party is one who would be
benefited by the estate such as an heir or one who
has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual
item of personal or real property he is called upon
to receive (Article 782, Civil Code). At the outset,
he appears to have an interest in the will as an
heir, defined under Article 782 of the Civil Code as
a person called to the succession either by the
provision of a will or by operation of law. However,
intestacy having resulted from the preterition of
respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir
of the testator. He has no legal standing to petition
for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be
dismissed.
As a general rule certiorari cannot be a substitute
for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito
v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng
v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is
axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner
has the remedy of appeal or some other plain,
speedy and adequate remedy in the course of law
(DD Comendador Construction Corporation v. Sayo
(118 SCRA 590 [1982]). They are, however, proper
remedies to correct a grave abuse of discretion of
the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de
Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the
probate of a will. As stated by respondent Court,
the general rule is that the probate court's
authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testator's
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only
after the Court has declared that the will has been
duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the
will (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court
of Appeals, 114 SCRA 478 [1982]; Cayetano v.
Leonides, 129 SCRA 522 [1984]; and Nepomuceno
v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute.
Under exceptional circumstances, the probate
court is not powerless to do what the situation
constrains it to do and pass upon certain provisions
of the will (Nepomuceno v. Court of
Appeals, supra). In Nuguid v. Nuguid the oppositors
to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the
motion held that the will in question was a
complete nullity and dismissed the petition without
costs. On appeal the Supreme Court upheld the
decision of the probate court, induced by practical
considerations. The Court said:
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. After all there exists a justiciable
controversy crying for solution.”
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the
motion to dismiss the petition by the surviving
spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was
fully substantiated by the evidence during the
hearing held in connection with said motion. The
Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues
raised in the motion to dismiss the petition deals
with the validity of the provisions of the will.
Respondent Judge allowed the probate of the will.
The Court held that as on its face the will appeared
to have preterited the petitioner the respondent
judge should
22 have denied its probate outright.
Where circumstances demand that intrinsic validity
of testamentary provisions be passed upon even
before the extrinsic validity of the will is resolved,
the probate court should meet the issue.
(Nepomuceno v. Court of Appeals, supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a
motion to dismiss the petition in Sp. Proceedings
No. 591 ACEB of the Regional Trial Court of Cebu
on the following grounds: (1) petitioner has no
legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p.
158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the
issues in the course of the trial on the merits of the
case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the
probate of the will and allowed the case to
progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and
sisters were instituted as universal heirs coupled
with the obvious fact that one of the private
respondents had been preterited would have been
an exercise in futility. It would have meant a waste
of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic
validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The
remedies of certiorari and prohibition were
properly availed of by private respondents.
Thus, this Court ruled that where the grounds for
dismissal are indubitable, the defendants had the
right to resort to the more speedy, and adequate
remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of
Appeals, supra) and even assuming the existence
of the remedy of appeal, the Court harkens to the
rule that in the broader interests of justice, a
petition for certiorari may be entertained,
particularly where appeal would not afford speedy
and adequate relief. (Maninang Court of
Appeals, supra).
PREMISES CONSIDERED, the petition is hereby
DENIED for lack of merit and the questioned
decision of respondent Court of Appeals
promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
EN BANC
G.R. No. L-47799             June 13, 1941
Administration of the estate of Agripino Neri
y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs. IGNACIA AKUTIN AND HER
CHILDREN, respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12,
1931, had by his first marriage six children named
Eleuterio, Agripino, Agapito, Getulia, Rosario and
Celerina; and by his second marriage with Ignacia
Akutin, five children named Gracia, Godofredo,
Violeta, Estela Maria, and Emma. Getulia, daughter
in the first marriage, died on October 2, 1923, that
is, a little less than eight years before the death of
said Agripino Neri y Chavez, and was survived by
seven children named Remedios, Encarnacion,
Carmen, Trinidad, Luz, Alberto and Minda. In
Agripino Neri's testament, which was admitted to
probate on March 21, 1932, he willed that his
children by the first marriage shall have no longer
any participation in his estate, as they had already
received their corresponding shares during his
lifetime. At the hearing for the declaration of heirs,
the trial court found, contrary to what the testator
had declared in his will, that all his children by the
first and second marriages intestate heirs of the
deceased without prejudice to one-half of the
improvements introduced in the properties during
the existence of the last conjugal partnership,
which should belong to Ignacia Akutin. The Court of
Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to
the two-thirds part which the testator could freely
dispose of. "This judgment of the Court of Appeals
is now sought to be reviewed in this petition
for certiorari.
The decisive question here raised is whether, upon
the foregoing facts, the omission of the children of
the first marriage annuls the institution of the
children of the first marriage as sole heirs of the
testator, or whether the will may be held valid, at
least with respect to one-third of the estate which
the testator may dispose of as legacy and to the
other one-third which he may bequeath as
betterment, to said children of the second
marriage.
The Court of Appeals invoked the provisions of
article 851 of the Civil Code, which read in part as
follows:
Disinheritance made without a statement of the
cause, or for a cause the truth of which, if
contradicted, is not proven, ... shall annul the
institution of the heir in so far as it prejudices the
person disinherited; but the legacies, betterments,
and other testamentary dispositions, in so far as
they do no encroach upon the legitime, shall be
valid.”
The appellate court thus seemed to have rested its
judgment upon the impression that the testator
had intended to disinherit, though ineffectively, the
children of the first marriage. There is nothing in
the will that supports this conclusion. True, the
testator expressly denied them any share in his
estate; but the denial was predicated, not upon the
desire to disinherit, but upon the belief, mistaken
though it was, that the children by the first
marriage had already received more than their
corresponding shares in his lifetime in the form of
advancement. Such belief conclusively negatives
all inference as to any intention to disinherit,
unless his statement to that effect is prove to be
deliberately fictitious, a fact not found by the Court
of Appeals. The situation contemplated in the
above provision is one in which the purpose to
disinherit is clear, but upon a cause not stated or
not proved, a situation which does not obtain in the
instant case.
The Court of Appeals quotes Manresa thus:
En el terreno
23 de los principios, la solucion mas
justa del problema que hemos hecho notar al
comentar el articulo, seria distinguir el caso en que
el heredero omitido viviese al otorgarse el
testamento, siendo conocida su existencia por el
testador, de aquel en que, o naciese despues, o se
ignorase su existencia, aplicando en el primer caso
la doctrina del articulo 851, y en el segundo la del
814. (6 Manresa, 354-355.)
But it must be observed that this opinion is
founded on mere principles (en el terreno de los
principios) and not on the express provisions of the
law. Manresa himself admits that according to law,
"no existe hoy cuestion alguna en esta materia: la
pretericion produce siempre los mismos efectos, ya
se refiera a personas vivas al hacer el testamento
o nacidas despues. Este ultimo grupo solo puede
hacer relacion a los descendientes legitimos,
siempre que ademas tengan derecho a legitima."
(6 Manresa, 381.)
Appellants, on the other hand, maintain that the
case is one of voluntary preterition of four of the
children by the first marriage, and of involuntary
preterition of the children by the deceased Getulia,
also of the first marriage, and is thus governed by
the provisions of article 814 of the Civil Code,
which read in part as follows:
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 betterments shall be valid, in so far as
they are not inofficious.”
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.(Cf. 6 Manresa,
346.) In the instant case, while the children of the
first marriage were mentioned in the will, they
were not accorded any share in the heriditary
property, without expressly being disinherited. It is,
therefore, a clear case of preterition as contended
by appellants. The omission of the forced heirs or
anyone of them, whether voluntary or involuntary,
is a preterition if the purpose to disinherit is not
expressly made or is not at least manifest.
Except as to "legacies and betterments" which
"shall be valid in so far as they are not inofficious"
(art. 814 of the Civil Code), preterition avoids the
institution of heirs and gives rise to intestate
succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and
February 27, 1909.) In the instant case, no such
legacies or betterments have been made by the
testator. "Mejoras" or betterments must be
expressly provided, according to articles 825 and
828 of the Civil Code, and where no express
provision therefor is made in the will, the law would
presume that the testator had no intention to that
effect. (Cf. 6 Manresa, 479.) In the will here in
question, no express betterment is made in favor
of the children by the second marriage; neither is
there any legacy expressly made in their behalf
consisting of the third available for free disposal.
The whole inheritance is accorded the heirs by the
second marriage upon the mistaken belief that the
heirs by the first marriage have already received
their shares. Were it not for this mistake, the
testator's intention, as may be clearly inferred from
his will, would have been to divide his property
equally among all his children.
Judgment of the Court of Appeals is reversed and
that of the trial court affirmed, without prejudice to
the widow's legal usufruct, with costs against
respondents.
EN BANC
 
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA
and LAURO AUSTRIA MOZO, petitioners,
vs. HON. ANDRES REYES, Judge, Court of First
Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ
and LUZ CRUZ-SALONGA respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed
with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The
probate was opposed by the present petitioners
Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, and still others who, like the
petitioner, are nephews and nieces of Basilia. This
opposition was, however, dismissed and the
probate of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was
destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meñez,
Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga,
all of whom had been assumed and declared by
Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her
will was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor
without bond by the same court in accordance with
the provisions of the decedent's will,
notwithstanding the blocking attempt pursued by
the petitioner Ruben Austria.
Finally, on November 5, 1959, the present
petitioners filed in the same proceedings a petition
in intervention for partition alleging in substance
that they are the nearest of kin of Basilia, and that
the five respondents Perfecto Cruz, et al., had not
in fact been adopted by the decedent in
accordance with law, in effect rendering these
respondents mere strangers to the decedent and
without any right to succeed as heirs.
Notwithstanding opposition by the respondent
Perfecto Cruz, as executor of the estate, the
court a quo allowed the petitioners' intervention by
its order of December 22, 1959, couched in broad
terms, as follows: "The Petition in Intervention for
Partition filed by the above-named oppositors
[Ruben Austria, et al.,] dated November 5, 1959 is
hereby granted."
In the meantime, the contending sides debated the
matter of authenticity or lack of it of the several
adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to
the National Bureau of Investigation for
examination and advice. N.B.I. report seems to
bear out24 the genuineness of the documents, but
the petitioners, evidently dissatisfied with the
results, managed to obtain a preliminary opinion
from a Constabulary questioned-document
examiner whose views undermine the authenticity
of the said documents. The petitioners Ruben
Austria, et al., thus moved the lower court to refer
the adoption papers to the Philippine Constabulary
for further study. The petitioners likewise located
former personnel of the court which appeared to
have granted the questioned adoption, and
obtained written depositions from two of them
denying any knowledge of the pertinent adoption
proceedings.
On February 6, 1963, more than three years after
they were allowed to intervene, the petitioners
Ruben Austria, let al., moved the lower court to set
for hearing the matter of the genuineness of the
adoption of the respondents Perfecto Cruz, et al.,
by the late Basilia. Before the date set by the court
for hearing arrived, however, the respondent
Benita Cruz-Meñez who entered an appearance
separately from that of her brother Perfecto Cruz,
filed on February 28, 1963 a motion asking the
lower court, by way of alternative relief, to confine
the petitioners' intervention, should it be
permitted, to properties not disposed of in the will
of the decedent.
On March 4, 1963, the lower court heard the
respondent Benita's motion. Both sides
subsequently submitted their respective
memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners'
intervention to the properties of the deceased
which were not disposed of in the will.
The petitioners moved the lower court to
reconsider this latest order, eliciting thereby an
opposition, from the respondents. On October 25,
1963 the same court denied the petitioners' motion
for reconsideration.
A second motion for reconsideration which set off a
long exchange of memoranda from both sides, was
summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court
to annul the orders of June 4 and October 25, 1963
and the order of April 21, 1964, all restricting
petitioners' intervention to properties that were not
included in the decedent's testamentary
dispositions.
The uncontested premises are clear. Two interests
are locked in dispute over the bulk of the estate of
the deceased. Arrayed on one side are the
petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, three of a number of
nephews and nieces who are concededly the
nearest surviving blood relatives of the decedent.
On the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and
all of whom claim kinship with the decedent by
virtue of legal adoption. At the heart of the
controversy is Basilia's last will — immaculate in its
extrinsic validity since it bears the imprimatur of
duly conducted probate proceedings.
The complaint in intervention filed in the lower
court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and
sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in
question, that the validity or invalidity of the
adoption is not material nor decisive on the
efficacy of the institution of heirs; for, even if the
adoption in question were spurious, the
respondents Perfecto Cruz, et al., will nevertheless
succeed not as compulsory heirs but as
testamentary heirs instituted in Basilia's will. This
ruling apparently finds support in article, 842 of the
Civil Code which reads:
One who has no compulsory heirs may dispose of
by will all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the
provisions of this Code with regard to the legitime
of said heirs.”
The lower court must have assumed that since the
petitioners nephews and niece are not compulsory
heirs, they do not possess that interest which can
be prejudiced by a free-wheeling testamentary
disposition. The petitioners' interest is confined to
properties, if any, that have not been disposed of
in the will, for to that extent intestate succession
can take place and the question of the veracity of
the adoption acquires relevance.
The petitioners nephews and niece, upon the other
hand, insist that the entire estate should descend
to them by intestacy by reason of the intrinsic
nullity of the institution of heirs embodied in the
decedent's will. They have thus raised squarely the
issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof
that the adoption of the same heirs by the
decedent is false.
The petitioners cite, as the controlling rule, article
850 of the Civil Code which reads:
The statement of a false cause for the institution of
an heir shall be considered as not written, unless it
appears from the will that the testator would not
have made such institution if he had known the
falsity of such cause.”
Coming closer to the center of the controversy, the
petitioners have called the attention of the lower
court and this Court to the following pertinent
portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos
forzosos) ay ang aking itinuturing na mga anak na
tunay (Hijos legalmente adoptados) na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang
may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking
ipinamamana ang aking mga ari-ariang maiiwan,
sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na
limang anak na sina Perfecto, Alberto, Luz, Benita
at Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa't isa at walang
lamangan25 (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati (½) ng
aking kaparti sa lahat ng aming ari-ariang
gananciales ng aking yumaong asawang Pedro
Cruz na napapaloob sa Actuacion Especial No. 640
ng Hukumang Unang Dulugan ng Rizal at
itinutukoy sa No. 1 ng parafo IV ng testamentong
ito, ang kalahati (½) ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na
namana ko sa aking yumaong ama na si Calixto
Austria, at ang kalahati (½) ng ilang lagay na lupa
na nasa Tinejeros, Malabon, Rizal, na aking
namana sa yumao kong kapatid na si Fausto
Austria.
The tenor of the language used, the petitioners
argue, gives rise to the inference that the late
Basilia was deceived into believing that she was
legally bound to bequeath one-half of her entire
estate to the respondents Perfecto Cruz, et al. as
the latter's legitime. The petitioners further
contend that had the deceased known the adoption
to be spurious, she would not have instituted the
respondents at all — the basis of the institution
being solely her belief that they were compulsory
heirs. Proof therefore of the falsity of the adoption
would cause a nullity of the institution of heirs and
the opening of the estate wide to intestacy. Did the
lower court then abuse its discretion or act in
violation of the rights of the parties in barring the
petitioners nephews and niece from registering
their claim even to properties adjudicated by the
decedent in her will?
Before the institution of heirs may be annulled
under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the
institution of heirs must be stated in the
will; second, the cause must be shown to be false;
and third, it must appear from the face of the will
that the testator would not have made such
institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use
of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana"
(legitime), that the impelling reason or cause for
the institution of the respondents was the
testatrix's belief that under the law she could not
do otherwise. If this were indeed what prompted
the testatrix in instituting the respondents, she did
not make it known in her will. Surely if she was
aware that succession to the legitime takes place
by operation of law, independent of her own
wishes, she would not have found it convenient to
name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on
legitimes should very well indicate her complete
agreement with that statutory scheme. But even
this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix
when she executed her will. One fact prevails,
however, and it is that the decedent's will does not
state in a specific or unequivocal manner the cause
for such institution of heirs. We cannot annul the
same on the basis of guesswork or uncertain
implications.
And even if we should accept the petitioners'
theory that the decedent instituted the
respondents Perfecto Cruz, et al. solely because
she believed that the law commanded her to do so,
on the false assumption that her adoption of these
respondents was valid, still such institution must
stand.
Article 850 of the Civil Code, quoted above, is a
positive injunction to ignore whatever false cause
the testator may have written in his will for the
institution of heirs. Such institution may be
annulled only when one is satisfied, after an
examination of the will, that the testator clearly
would not have made the institution if he had
known the cause for it to be false. Now, would the
late Basilia have caused the revocation of the
institution of heirs if she had known that she was
mistaken in treating these heirs as her legally
adopted children? Or would she have instituted
them nonetheless?
The decedent's will, which alone should provide the
answer, is mute on this point or at best is vague
and uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were
borrowed from the language of the law on
succession and were used, respectively, to
describe the class of heirs instituted and the
abstract object of the inheritance. They offer no
absolute indication that the decedent would have
willed her estate other than the way she did if she
had known that she was not bound by law to make
allowance for legitimes. Her disposition of the free
portion of her estate (libre disposicion) which
largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent
Benita Cruz, shows a perceptible inclination on her
part to give to the respondents more than what
she thought the law enjoined her to give to them.
Compare this with the relatively small devise of
land which the decedent had left for her blood
relatives, including the petitioners Consuelo
Austria-Benta and Lauro Mozo and the children of
the petitioner Ruben Austria. Were we to exclude
the respondents Perfecto Cruz, et al. from the
inheritance, then the petitioners and the other
nephews and nieces would succeed to the bulk of
the testate by intestacy — a result which would
subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should
be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an
interpretation which will give to every expression
some effect, rather than one which will render any
of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which
will prevent intestacy." 1
Testacy is favored and doubts are resolved on its
side, especially where the will evinces an intention
on the part of the testator to dispose of practically
his whole estate,2 as was done in this case.
Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the
testator allowed to prevail, that we could even vary
the language of the will for the purpose of giving it
effect.3 A probate court has found, by final
judgment, that the late Basilia Austria Vda. de Cruz
was possessed of testamentary capacity and her
last will executed free from falsification, fraud,
trickery or undue influence. In this situation, it
becomes our duty to give full expression to her
will.4
At all events, the legality of the adoption of the
respondents
26 by the testatrix can be assailed only in
a separate action brought for that purpose, and
cannot be the subject of a collateral attack. 5
To the petitioners' charge that the lower court had
no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the
records, the subsequent orders complained of
served merely to clarify the first — an act which
the court could legally do. Every court has the
inherent power to amend and control its processes
and orders so as to make them conformable to law
and justices.6 That the court a quo has limited the
extent of the petitioners' intervention is also within
its powers as articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at
petitioners cost.
EN BANC
G.R. No. L-13557             April 25, 1960
DONATO LAJOM, petitioner,
vs. HON. JOSE N. LEUTERIO, Judge of the
Court of First Instance of Nueva Ecija, and
RAFAEL VIOLA, respondents.
M. Almario and J. T. Lajom for petitioner.
M. H. de Joya for respondents.
CONCEPCION, J.:
This is a petition for a writ
of certiorari and mandamus to set aside certain
orders, and reinstate another order, of respondent
Judge.
The factual background of this case may be found
in our decision in G. R. No. L-6457, entitled "Donato
Lajom vs. Jose Viola, et al." (promulgated May 30,
1956), from which we quote:
Maximo Viola died on September 3, 1933. Judicial
proceedings of his testate estate were instituted in
the Court of First Instance of Bulacan (Civil Case
No. 4741) and closed on March 17, 1937. An
agreement of partition and distribution (dated
October 25, 1935) was executed by and between
Jose P. Viola, Rafael Viola and Silvio Viola,
legitimate children of Maximo Viola and Juana
Toura, whereby the properties left by their father,
Maximo Viola, were divided among themselves. On
March 17, 1939, Donato Lajom (plaintiff-appellee
herein) filed in the Court of First Instance of Nueva
Ecija a complaint, amended on May 16, 1939,
praying, among other things, that he be declared a
natural child of Maximo Viola, impliedly recognized
and acknowledged in accordance with the laws in
force prior to the Civil Code, thereby being a co-
heir of Jose P. Viola, Rafael Viola and Silvio Viola
(defendants-appellants); that the agreement of
partition and distribution executed in 1935 by
these three legitimate children of Maximo Viola be
declaired null and void after collation, payment of
debts and accounting of fruits, anew partition be
ordered adjusdication one-seventh of the estate
left by Maximo Viola by Donato Lajom and two-
seventh to each of the three appellants. The latter
filed a demurrer to the amended complaint which
was sustained by the Court of First Instance of
Nueva Ecija in its order of July 31, 1939, holding
that the allegation of the amended complaint
called for the exercise of probate jurisdication and
that as the complaint showed that the will of the
deceased Maximo Viola had already been probated
in the Court of First Instance of Bulacan which had
first taken cognizance of the settlement of his
estate, the Court of First Instance of Nueva Ecija
could not subsequently assume the same
jurisdiction. Upon appeal to the Supreme Court by
the plaintiff-appellee, the order sustaining the
demurrer was reversed and the case was
remanded to the Court of First Instance of Nueva
Ecija for further proceeding.
On December 21, 1942, the defendants-appellants
accordingly filed an answer to the amended
complaint containing specific denials and setting
up the affirmative defenses that the appellants are
the sole heirs of Maximo Viola; that corresponding
judicial proceedings of his testate estate were duly
instituted and terminated in the Court of First
Instance of Bulacan, of which plaintiff-appellee was
fully aware; that the action was filed by the
appellee two years after the termination of said
testate proceedings and almost six years after the
death of Maximo Viola, without having previously
asserted any right whatsoever to any part of said
estate, and he is therefore now barred from doing
so; and that assuming the appellee to be an
acknowledged natural child of Maximo Viola, his
right of action had prescribed. After trial, the Court
of First Instance of Nueva Ecija rendered a decision
in favor of the plaintiff, the dispositive part of which
reads as follows:
EN VISTA DE LAS CONSIDERACIONES ARRIBA
EXPUESTAS, el Juzgado falla este asunto a favor del
demandante y contra de los demandados,
declarando al demandante, Donato Lajom, hijo
natural, implicita y tacitamente, reconocido por su
padre, el difundo Dr. Maximo Viola, de acuerdo con
la Ley de Toro; se declara la particion y distribucion
hecha por los demandados "Convenio de Particion
y Adjudicacion de los Bienes Dejados por el
Difundo Dr. Maximo Viola, ilegal, nulo y de ningun
valor; se ordena la colacion de los bienes en
cuestion, poniendo los mismos en manos de un
administrador judicial; se ordena a todos y cada
uno de los aqui demandados a presentar una
liquidacion de los frutos y ptoductos provenientes
de dichas propiedades asignadas a cada uno de
ellos desde el Octubre 25, 1935, con el fin de una
nueva distribucion; se ordena a los demandados
Jose P. Viola y Silvio Viola a someter una
liquidacion de los frutos y productos de las tres
parcelas de terreno mencionadas en los parrafos 1
y 2 del Annex "A" que han sido puestas bajo su
administracion en el Procedimiento Especial No.
4741 del Juzgado de Primera Instancia de Bulacan
a partir del 3 del Septembre de 1933; y finalmente,
se ordena la particion y adjudicacion a favor del
demandante de una septima (¹/7) parte de dichas
propiedades y productos; dos septimas (2/7)
parbes a cada uno de los aqui demandados,
cuando todas esas propiedadespertenecientes al
finado Dr. Maximo Viola sean colados, todas las
deudas pagodas y los frutos rendidos. Con costas.
Said decision of the Court of First Instance of
Nueva Ecija was, on appeal, affirmed by this Court
in said case No. L-6457 on May 30, 1956.
When the decision of this Court became final, the
records were remanded to the lower court where
plaintiff filed a motion for the execution of the
judgment, the collation of all properties of the late
Dr. Maximo Viola and the redistribution of his
estate as indicated in said judgment. Acting on the
motion, respondent Judge issued an order dated
October 30, 1956, pertinent parts of which are of
the following tenor:
The decision annulled the partition entered into by
the defendants
27 and ordered the "collation of all the
properties in question", placing the same in the
hands of a judicial administrator. What the
properties in question are, do not clearly appear. In
the inventory attached to the original complaint, 75
parcels of land were enumerated. In the agreement
of partition which was annulled, the inventory of
the estate of the late Dr. Maximo Viola enumerates
only 47 parcels of land. These 47 parcels,
according to the agreement of partition, were all
conjugal. In the motion for execution, plaintiff now
enumerates 84 parcels of land. The decision did
not state what properties belonged to the late Dr.
Maximo Viola, but it did provide for the partition of
all the estate belonging to the late Dr. Viola after
the same had been collated and all the debts paid
and the fruits me liquidated. It would he manifestly
unfair to either party to consider the 75 parcels of
land enumerated in the inventory attached to the
amended complaint as the conjugal properties of
the late Dr. Maximo Viola and his deceased wife, or
to limit the same to the 47 parcels enumerated in
the inventory of the estate of the late Dr. Maximo
Viola attached to the agreement of partition. As a
starting point, however, ½ of the 47 parcels
enumerated in the agreement of partition and
marked, as Exhibit F-1, which is Exhibit A of the
deed of partition, are undoubtedly the properties of
the late Maximo Viola which must be partitioned
among the plaintiff and the defendants in
accordance with the decision. Accordingly, the
defendants, who are in possession of each and
everyone of these 47 parcels, are hereby ordered
to deliver the same to the judicial administrator to
be hereinafter appointed, for his administration
until the final partition in accordance with the
decision of this Court. As there is a disagreement
among the parties with respect to the other
properties, the plaintiff is hereby ordered to submit
within 15 days upon receipt of this order a list of
such other properties which he believes belong to
the late Dr. Maximo Viola. The defendants shall file
their opposition thereto within a like period after
which the same shall be set for hearing to
determine whether or not such properties belong
to he late Dr. Maximo Viola and which should be
partitioned among his heir's.
The decision ordering the defendants to collate is
questioned by the defendants, first, on ground that
what has been left by will should not be collated,
and second, that what has been left by way of
donation to some of the defendants should not also
be collated. The decision requires the defendants
to collate all the properties of the late Dr. Maximo
viola so that they may be partitioned among the
heirs. That decision is now final, and it is not for
this, Court to say that the Court rendering the
decision had committed an error. If error there had
been, it is now beyond the power of this Court or
any Court to correct the same. However, the will
having completely omitted the plaintiff who is a
compulsory heir, and having disposed of all the
properties in favor of the defendants, it naturally
encroached upon the legitime of the plaintiff. Such
testamentary dispositions may not impair the
legitimate (Art. 1037, Spanish Civil Code). In
another sense, the plaintiff, being a compulsory
heir in the direct line, and having been preterited,
the institution is annulled in its entirety (Art. 814,
Spanish Civil Code now Art. 854, N.C.C.,
Neri vs. Akutin, 72 Phil., 322).
With respect to the properties donated by the late
Dr. Maximo Viola and his wife to some of the
defendants, the same must be collated, but the
donation having been made jointly by the spouses,
only ½ thereof must be brought into collation in
accordance with Article 1046 of the Spanish Civil
Code. Moreover, the same things donated are not
to be brought to collation and partition, but only
their value at the time of the donation in
accordance with Article 1045 also of the Spanish
Code.
In accordance with the agreement of the parties,
Mr. Manuel V. Gallego, Jr. is hereby appointed
administrator of the properties herein collated and
may take his oath and assume the performance of
his duties upon the filing of a bond in the sum of
P20,000.
In accordance with the dispositive part of the
decisions, the defendants Jose P. Viola and Silvio
Viola are hereby ordered to submit a liquidation of
the fruits and products of the three parcels of land
mentioned in paragraphs 1 and 2 of Annex A. Each
and everyone of the defendants is hereby ordered
to submit a liquidation of the fruits and products of
the properties assigned to each and everyone of
them from October 25, 1935, all within 15 days
from the receipt of this order.”
When Rafael Viola filed the report required in this
order, Donato Lajom noticed that nothing was said
in the aforementioned report concerning the fruits
of a riceland, with an area of 215 hectares,
allegedly donated by Dr. Maximo Viola to said
Rafael Viola. So, Lajom asked that Rafael Viola be
ordered to include the products of said riceland in
his report, in order that the property may be
included in the redistribution of the Viola Estate.
Rafael Viola objected thereto upon the ground that
said property was not "mentioned or included in
the complaint filed in this case." The objection was
sustained and the petition was denied in an order
dated October 30, 1957, stating that:
. . . In paragraph II of the amended complaint (p.
43 of the record) only the donation inter vivos in
favor of the defendants Jose Viola and Silvio Viola
were questioned. The dispositive part of the
decision required the defendants to collate the
properties in question. The properties which were
donated to Rafael Viola had not been put in issue
by the pleadings and they are not in question and,
therefore, cannot be deemed to have been
embraced in the dispositive part of the decision
requiring the defendants to collate the properties
in question.”
A motion for reconsideration of said order of
October 30, 1957 was denied, on January 30, 1958,
upon the ground that:
The decision required the defendants to collate the
properties in question. The properties donated to
Rafael Viola and which are sought to be collated by
the plaintiff are not in question, not having been
put in issue by the pleadings. Neither are they
mentioned in the inventory of the 75 parcels which
are annexed to the complaint. If the court, in its
previous orders, made mention of collation of all
the properties of the deceased, the court had
committed
28 an error, and, therefore, corrects that
error in accordance with this order and in the order
of October 30, 1957.”
Thereupon Lajom instituted the present case
for certiorari and mandamus, with the prayer:
. . . that the respondent Judge be ordered to set
aside his Order of October 30, 1957 and January
30, 1958 and reinstate his original Order of
October 30, 1956 requiring 'the defendants to
collate all the properties of the late Dr. Maxinio
Viola so that they may be partitioned among the
heirs' and 'with respect to the property donated by
the late Dr. Maximo Viola and his wife to some of
the defendants the same must be collated.”
Petitioner maintains that the riceland
aforementioned was involved in case G. R. No. L-
6457, because respondents maintained in their
brief and in the motion for reconsideration filed by
them in the Supreme Court that the lower court
had erred in ordering the collation of all the
properties of the deceased. Moreover, he urges
that the order of respondent Judge of October 30,
1956, had already declared that all properties of
the deceased, including those donated by him,
were subject to collation; that said order became
final and executory, no appeal having been taken
therefrom; and that, consequently, said order could
not be validly modified or reversed by the
aforementioned orders of respondent Judge, dated
October 30, 1957 and January 30, 1958.
We find no merit in this pretense. The decision
affirmed by this Court in G. R. No. L-6457 ordained
the collation of the "properties in question". The
properties in question were described in an
inventory attached to petitioner's original
complaint in case No. 8077 and did not include the
aforementioned riceland, with an area of 215
hectares. Indeed, Lajom admits that he did not
include, and could not have included or mentioned
it, in his complaint because, at the time of its filing,
he did not know of the existence of said property. consequence of said preterition, would thereby
Hence, the same was not in question in case No. acquire the character of a proceeding for the
8077, and was not covered by the decision therein settlement of an intestate estate, with jurisdiction
rendered and subsequently affirmed by the over any and all properties of the deceased. But,
Supreme Court in Case No. L-6457. Civil Case No. 8077 is an ordinary civil action, and
the authority of the court having jurisdiction over
It is not accurate to say that the order of October the same is limited to the properties described in
30, 1956, had directed the collation of all property the pleadings, which admittedly do not include the
of the deceased. It did not even require the aforementioned riceland.
collation of 75 parcels of land enumerated in the
inventory already adverted to. It expressed the Without prejudice, therefore, to the institution of
view that one-half of the 47 parcels covered by the the corresponding intestate proceedings by the
agreement of partition therein nullified, should be proper party, the petition herein should, therefore,
delivered to the administrator to be hereinafter be, as it is hereby, denied, with costs against the
appointed. Then it added: petitioner. It is so ordered.
. . . As there is a disagreement among the parties
with respect to the other properties, the plaintiff is
hereby ordered to submit within 15 days upon
receipt of this order a list of such other properties
which he believes belong to the late Dr. Maximo
Viola. The defendants shall file their opposition
thereto within a like period after which the same
shall be set for hearing to determine whether or
not such properties belong to the late Dr. Maximo
Viola and which should be partitioned among his
heirs.”
Thus, it left the question whether other properties
should be collated or not open for future
determination. In any event, respondent Judge was
merely enforcing a decision that had already
become final. Any order directing what was not
required in said decision — and the same
contained no pronouncement with respect to the
riceland adverted to above — would be in excess of
his jurisdiction and therefore, null and void.
It is next alleged that petitioner having been the
victim of preterition, the institution of heirs made
by the deceased Dr. Maximo Viola became
ineffective, and that Civil Case No. 8077 was
thereby converted into an intestate proceedings for
the settlement of his estate. This contention is
clearly untenable. There might have been merit
therein if we were dealing with a special
proceedings for the settlement of the testate
estate of a deceased person, which, in