G.R. No.

L-14070

March 29, 1961

MARIA GERVACIO BLAS, MANUEL GERVACIO BLAS, LEONCIO GERVACIO BLAS and LODA GERVACIO BLAS, PlaintiffsAppellants, vs.ROSALINA SANTOS, in her capacity as Special Administratrix of the Estate of the deceased MAXIMA SANTOS VDA. DE BLAS, in Sp. Proc. No. 2524, Court of First Instance of Rizal, defendants-appellants. MARTA GERVACIO BLAS and DR. JOSE CHIVI, Defendants-Appellants. LABRADOR, J.: chanrobles virtual law library This action was instituted by plaintiffs against the administration of the estate of Maxima Santos, to secure a judicial declaration that one-half of the properties left by Maxima Santos Vda. de Blas, the greater bulk of which are set forth and described in the project of partition presented in the proceedings for the administration of the estate of the deceased Simeon Blas, had been promised by the deceased Maxima Santos to be delivered upon her death and in her will to the plaintiffs, and requesting that the said properties so promised be adjudicated to the plaintiffs. The complaint also prays for actual damages in the amount of P50,000. (Record on Appeal, pp. 1-65.) The alleged promise of the deceased Maxima Santos is contained in a document executed by Maxima Santos on December 26, 1936 attached to the complaint as Annex "H" and introduced at the trial as Exhibit "A". (Ibid., pp. 258-259.) The complaint also alleges that the plaintiffs are entitled to inherit certain properties enumerated in paragraph 3 thereof, situated in Malabon, Rizal and Obando, Bulacan, but which properties have already been in included in the inventory of the estate of the deceased Simeon Blas and evidently partitioned and conveyed to his heirs in the proceedings for the administration of his (Simeon Blas) estate.chanroblesvirtualawlibrary chanrobles virtual law library Defendant, who is the administratrix of the estate of the deceased Maxima Santos Vda. de Blas, filed an answer with a counterclaim, and later, an amended answer and a counterclaim. The said amended answer admits the allegations of the complaint as to her capacity as administratrix the death of Simeon Blas on January 3, 1937; the fact that Simeon Blas and Marta Cruz begot three children only one of whom, namely, Eulalio Blas, left legitimate descendants; that Simeon Blas contracted a second marriage with Maxima Santos on June 28, 1898. She denies for lack of sufficient information and belief, knowledge edge of the first marriage of Simeon Blas to Marta Cruz, the averment that Simeon Blas and Marta Cruz acquired properties situated in Obando, Bulacan, that said properties were utilized as capital, etc. As special defenses, she alleges that the properties of the spouses Blas and Santos had been settled and liquidated in the project of partition of the estate of said Simeon Blas; that pursuant to the project of partition, plaintiffs and some defendants had already received the respective properties adjudicated to them; that the plaintiffs and the defendants Marta Geracio and Jose Chivi are estopped from impugning the validity of the project of partition of the estate of the deceased Simeon Blas and from questioning the ownership in the properties conveyed in the project of partition to Maxima Santos as her own exclusive property; that the testament executed by Maxima Santos is valid, the plain plaintiffs having no right to recover any portion of Maxima Santos' estate now under administration by the court. A counterclaim for the amount of P50,000 as damages is also included in the complaint, as also a cross-claim against Marta Gervacio Blas and Jose Chivi.chanroblesvirtualawlibrary chanrobles virtual law library Trial of the case was Conducted and, thereafter, the court, Hon. Gustave Victoriano, presiding, rendered judgment dismissing the complaint, with costs against plaintiff, and dismissing also the counterclaim and cross-claim decision ,the plaintiffs filed by the defendants. From this district have appealed to this Court.chanroblesvirtualawlibrary chanrobles virtual law library The facts essential to an understanding of the issues involved in the case may be briefly summarized as follows: Simeon Blas contracted a first marriage with Marta Cruz sometime before 1898. They had three children, only one of whom, Eulalio, left children, namely, Maria Gervacio Blas, one of the plaintiffs, Marta Gervacio Blas, one of the defendants, and Lazaro Gervacio Blas. Lazaro died in 1950, and is survived by three legitimate children who are plaintiffs herein, namely, Manuel Gervacio Blas, Leoncio Gervacio Blas and Loida Gervacio Blas. Marta Cruz died in 1898, and the following year, Simeon Blas contracted a second marriage with Maxima Santos. At the time of this second marriage, no liquidation of the properties required by Simeon Blas and Marta Cruz was made. Three of the properties left are fishponds located in Obando, Bulacan. Maxima Santos does not appear to have apported properties to her marriage with Simeon Blas.chanroblesvirtualawlibrary chanrobles virtual law library On December 26, 1936, only over a week before over a week before his death on January 9, 1937, Simeon Blas executed a last will and testament. In the said testament Simeon Blas makes the following declarations: I chanrobles virtual law library 2. Sa panahon ng aking pangalawang asawa, MAXIMA SANTOS DE BLAS, ay nagkaroon ako at nakatipon ng mga kayamanan (bienes) at pag-aari (propriedades) na ang lahat ng lupa, palaisdaan at iba pang pag-aari ay umaabot sa halagang ANIM NA RAAN PITONG PU'T WALONG DAAN LIBO WALONG DAAN WALONG PUNG PISO (678,880-00) sang-ayon sa mga halaga sa amillarimento (valor Amillarado.) II chanrobles virtual law library 1. Ang kalahati ng lahat ng aming pag-aari, matapos mabayaran ang lahat ng aking o aming pag-kakautang na mag-asawa, kung mayroon man, yayamang ang lahat ng ito ay kita sa loob ng matrimonio (bienes ganaciales) ay bahagi ng para sa aking asawa, MAXIMA SANTOS DE BLAS, sang-ayon sa batas. (Record on Appeal, pp. 250-251.) The above testamentary provisions may be translated as follows: I chanrobles virtual law library 2. During my second marriage with Maxima Santos de Blas, I possessed and acquired wealth and properties, consisting of lands, fishponds and other kinds of properties, the total assessed value of which reached the amount P678,880.00. II chanrobles virtual law library 1. One-half of our properties, after the payment of my and our indebtedness, all these properties having been acquired during marriage (conjugal properties), constitutes the share of my wife Maxima Santos de Blas, according to the law.

At the time of the execution of said will, Andres Pascual a son-in-law of the testator, and Avelina Pascual and others, were present. Andres Pascual had married a descendant by the first marriage. The will was prepared by Andres Pascual, with the help of his nephew Avelino Pascual. The testator asked Andres Pascual to prepare a document which was presented in court as Exhibit "A", thus: Q - Was there anybody who asked you to prepare this document? chanrobles virtual law library A - Don Simeon Blas asked me to prepare this document (referring to Exhibit "A"), (t.s.n., Sarmiento to, P. 24). The reason why the testator ordered the preparation of Exhibit "A" was because the properties that the testator had acquired during his first marriage with Marta Cruz had not been liquidated and were not separated from those acquired during the second marriage. Pascual's testimony is as follows: Q - To whom do you refer with the word "they"? chanrobles virtual law library A - Simeon Blas and his first wife, Marta Cruz. When Marta Cruz died they had not made a liquidation of their conjugal properties and so all those properties were included all in the assets of the second marriage, and that is the reason why this document was prepared. (t.s.n., Sarmiento, p. 36.) The above testimony is fully corroborated by that of Leoncio Gervacio, son-in-law of Simeon Blas. Q - Please state to the Court? chanrobles virtual law library A - My children were claiming from their grandfather Simeon Blas the properties left by their grandmother Marta Cruz in the year 1936.chanroblesvirtualawlibrary chanrobles virtual law library Q - And what happened with that claim of your children against Simeon Blas regarding the assets or properties of the first marriage that were left after the death of Marta Cruz in 1936? chanrobles virtual law library A - The claim was not pushed through because they reached into an agreement whereby the parties Simeon Blas Maxima Santos, Maria Gervacio Bias, Marta Gervacio Blas and Lazaro Gervacio Blas agreed that Simeon Blas and Maxima Blas will give one-half of the estate of Simeon Blas. (t.s.n., Sarmiento, pp. 143-144). The document which was thus prepared and which is marked as Exhibit "A" reads in Tagalog, thus: MAUNAWA NG SINO MANG MAKABABASA: chanrobles virtual law library Na akong si MAXIMA SANTOS DE BLAS, nasa hustong gulang, kasal kay SIMEON BLAS, taga bayan ng Malabon, Rizal, Philippines, sa pamamagitan ng kasulatang ito ay malaya kong ipinahahayag: chanrobles virtual law library Na aking nabasa at naunawa ang testamento at huling kalooban na nilagdaan ng aking asawa, SIMEON BLAS, at ipinahahayag ko sa ilalim ng aking karangalan at sa harap ng aking asawa na igagalang at pagpipitaganan ang lahat at bawa't isang bahagi ng nabanggit na testamento at ipinangangako ko pa sa pamamagitan ng kasulatang ito na ang lahat ng maiiwang pag-aari at kayamanan naming mag-asawa, na nauukol at bahaging para sa akin sa paggawa ko naman ng aking testamento ay ipagkakaloob ko ang kalahati () sa mga herederos at legatarios o pinamamanahan ng aking nabanggit na asawa, SIMEON BLAS, sa kaniyang testamento, na ako'y makapipili o makahihirang na kahit kangino sa kanila ng aking pagbibigyan at pamamanahan sang-ayon sa paggalang, paglilingkod, at pakikisama ng gagawin sa akin.chanroblesvirtualawlibrary chanrobles virtual law library SA KATUNAYAN NG LAHAT NG ITO ay nilagdaan ko ang kasulatang ito ngayon ika 26 ng Diciembre ng taong 1936, dito sa San Francisco del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp. 29-30 - Appellant's brief). (Fdo.) MAXIMA SANTOS DE BLAS and which, translated into English, reads as follows: KNOW ALL MEN BY THESE PRESENTS: chanrobles virtual law library That I MAXIMA SANTOS DE BLAS, of legal age, married to SIMEON BLAS, resident of Malabon, Rizal, Philippines, voluntarily state: chanrobles virtual law library That I have read and knew the contents of the will signed by my husband, SIMEON BLAS, (2) and I promise on my word of honor in the presence of my husband that I will respect and obey all and every disposition of said will (3) and furthermore, I promise in this document that all the properties my husband and I will leave, the portion and share corresponding to me when I make my will, I will give one-half () to the heirs and legatees or the beneficiaries named in the will of my husband, (4) and that I can select or choose any of them, to whom I will give depending upon the respect, service and treatment accorded to me.chanroblesvirtualawlibrary chanrobles virtual law library IN WITNESS WHEREOF, I signed this document this 26th day of December, 1936 at San Francisco del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp. 30-31, Appellant's brief). (Sgd.) MAXIMA SANTOS DE BLAS The court below held that said Exhibit "A" has not created any right in favor of plaintiffs which can serve as basis for the complaint; that neither can it be considered as a valid and enforceable contract for lack of consideration and because it deals with future inheritance. The court also declared that Exhibit "A" is not a will because it does not comply with the requisites for the execution of a will; nor could it be considered as a donation, etc.chanroblesvirtualawlibrary chanrobles virtual law library

Both the court below in its decision and the appellees in their brief before us, argue vehemently that the heirs of Simeon Blas and his wife Marta Cruz can no longer make any claim for the unliquidated conjugal properties acquired during said first marriage, because the same were already included in the mass of properties constituting the estate of the deceased Simeon Blas and in the adjudications made by virtue of his will, and that the action to recover the same has prescribed. This contention is correct. The descendants of Marta Cruz can no longer claim the conjugal properties that she and her husband may have required during their marriage although no liquidation of such properties and delivery thereof to the heirs of Marta Cruz have been made, no action to recover said propertied having been presented in the proceedings for the settlement of the estate of Simeon Blas.chanroblesvirtualawlibrary chanrobles virtual law library But the principal basis for the plaintiffs' action in the case at bar is the document Exhibit "A". It is not disputed that this document was prepared at the instance of Simeon Blas for the reason that the conjugal properties of me on Blas for the reason his first marriage had not been liquidated; that it was prepared at the same time as the will of Simeon Blas on December 26, 1936, at the instance of the latter himself. It is also not disputed that the document was signed by Maxima Santos and one copy thereof, which was presented in court as Exhibit "A", was kept by plaintiffs' witness Andres Pascual.chanroblesvirtualawlibrary chanrobles virtual law library Plaintiffs-appellants argue before us that Exhibit "A" is both a trust agreement and a contract in the nature of a compromise to avoid litigation. Defendants-appellees, in answer, claim that it is neither a trust agreement nor a compromise a agreement. Considering that the properties of the first marriage of Simeon Blas had not been liquidated when Simeon Blas executed his will on December 26, 1936', and the further fact such properties where actually , and the further fact that included as conjugal properties acquired during the second marriage, we find, as contended by plaintiffs-appellants that the preparation and execution of Exhibit "A" was ordered by Simeon Blas evidently to prevent his heirs by his first marriage from contesting his will and demanding liquidation of the conjugal properties acquired during the first marriage, and an accounting of the fruits and proceeds thereof from the time of the death of his first wife.chanroblesvirtualawlibrary chanrobles virtual law library Exhibit "A", therefore, appears to be the compromise defined in Article 1809 of the Civil Code of Spain, in force at the time of the execution of Exhibit "A", which provides as follows: Compromise is a contract by which each of the parties in interest, by giving, promising, or retaining something avoids the provocation of a suitor terminates one which has already the provocation been instituted. (Emphasis supplied.) Exhibit "A" states that the maker (Maxima Santos) had read and knew the contents of the will of her husband read and knew the contents of the will Simeon Blas - she was evidently referring to the declaration in the will(of Simeon Blas) that his properties are conjugal properties and one-half thereof belongs to her (Maxima Santos) as her share of the conjugal assets under the law. The agreement or promise that Maxima Santos makes in Exhibit "A" is to hold one-half of her said share in the conjugal assets in trust for the heirs and legatees of her husband in his will, with the obligation of conveying the same to such of his heirs or legatees as she may choose in her last will and testament. It is to be noted that the conjugal properties referred to are those that were actually existing at that time, December 26, 1936. Simeon Blas died on January 9, 1937. On June 2, 1937, an inventory of the properties left by him, all considered conjugal, was submitted by Maxima Santos herself as administratrix of his estate. A list of said properties is found in Annex "E", the complete inventory submitted by Maxima Santos Vda. de Blas, is administratrix of the estate of her husband, dated March 10, 1939. The properties which were given to Maxima Santos as her share in the conjugal properties are also specified in the project of partition submitted by said Maxima Santos herself on March 14, 1939. (Record on Appeal, pp. 195-241.) Under Exhibit "A", therefore, Maxima Santos contracted the obligation and promised to give one-half of the above indicated properties to the heirs and legatees of Simeon Blas.chanroblesvirtualawlibrary chanrobles virtual law library Counsel for the defendant-appellee claims Exhibit "A" is a worthless piece of paper because it is not a will nor a donation mortis causanor a contract. As we have in indicated above, it is a compromise and at the same time a contract with a sufficient cause or consideration. It is also contended that it deals with future inheritance. We do not think that Exhibit "A" is a contract on future inheritance. it is an obligation or promise made by the maker to transmit one-half of her share in the conjugal properties acquired with her husband, which properties are stated or declared to be conjugal properties in the will of the husband. The conjugal properties were in existence at the time of the execution of Exhibit "A" on December 26, 1936. As a matter of fact, Maxima Santos included these properties in her inventory of her husband's estate of June 2, 1937. The promise does not refer to any properties that the maker would inherit upon the death of her husband, because it is her share in the conjugal assets. That the kind of agreement or promise contained in Exhibit "A" is not void under Article 1271 of the old Civil Code, has been decided by the Supreme Court of Spain in its decision of October 8, 19154, thus: Que si bien el art. 1271 del Codigo civil dispone que sobre la herenciafutura no se podra celebrar otros contratos que aquellos cuyo objecto seapracticar entre vivos la division de un caudal, conforme al articulo 1056, esta prohibicion noes aplicable al caso, porque la obligacion que contrajoel recurr en contrato privado de otorgar testamento e instituir heredera a su subrina de los bienes que adquirio en virtud de herencia, procedentes desu finada consorte que le quedasen sobrantes despues de pagar las deudas, y del ganacial que se expresa, asi como de reconocer, ademas, con alguna cosaa otros sobrinos, se refiere a bienes conocidos y determinados existentes cuando tal compromisi se otorgo, y no a la universalidad de una herencia que, sequn el art. 659 del citado Codigo civil, as determina a muerte, constituyendola todos los bienes, derechos y obligaciones que por ella no sehayan extinguido: ..." (Emphasis supplied.) It will be noted that what is prohibited to be the subject matter of a contract under Article 1271 of the Civil Code is " future inheritance." To us future inheritance is any property or right not in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. The properties subject of the contract Exhibit "A" are well defined properties, existing at the time of the agreement, which Simeon Blas declares in his statement as belonging to his wife as her share in the conjugal partnership. Certainly his wife's actual share in the conjugal properties may not be considered as future inheritance because they were actually in existence at the time Exhibit "A" was executed.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court held that the plaintiffs-appellants in the case at bar are concluded by the judgement rendered in the proceedings for the settlement of the estate of Simeon Blas for the reason that the properties left by him belonged to himself and his wife Maxima Santos; that the project of partition in the said case, adjudicating to Maxima Santos one-half as her share in the conjugal properties, is a bar to another action on the same subject matter, Maxima Santos having become absolute owner of the said properties adjudicated in her favor. As already adverted to above, these contentions would be correct if applied to the claim of the plaintiffs-appellants that said properties were acquired with the first wife of Simeon Blas, Marta Cruz. But the main ground upon which plaintiffs base their present action is the document Exhibit "A", already fully considered above. As this private document contains the express promise made by Maxima Santos to convey in her testament, upon her death, one-half of the conjugal properties she would receive as her share in the conjugal properties, the action to enforce the said promise did not arise until and after her death when it was found that she did not comply with her above-mentioned promise. (Art. 1969, old Civil Code.) The argument that the failure of the plaintiffs-appellants herein to oppose the project of partition in the settlement of the estate of Simeon Blas, especially that portion of the project which assigned to Maxima Santos one-half of all the conjugal properties bars their present action, is, therefore, devoid of merit. It may be added that plaintiffs-appellants did not question the validity of the project of partition precisely because of the promise made by Maxima Santos in the compromise Exhibit "A"; they acquised in the approval of said project of partition because they were relying on the promise made by Maxima Santos in Exhibit "A", that she would transmit one-half of the conjugal properties that she was going to receive as her share in the conjugal partnership upon her death and in her will, to the heirs and legatees of her husband Simeon Blas.chanroblesvirtualawlibrary chanrobles virtual law library Neither can the claim of prescription be considered in favor of the defendants. The right of action arose at the time of the death of Maxima Santos on October 5,1956, when she failed to comply with the promise made by her in Exhibit "A". The plaintiffsappellants immediately presented this action on December 27, 1956, upon learning of such failure on the part of Maxima Santos to comply with said promise. This defense is, therefore, also without merit.chanroblesvirtualawlibrary chanrobles virtual law library It is next contended by the defendant-appellee that Maxima Santos complied with her above-mentioned promise, - that Andres Pascual, Tomasa Avelino, Justo Garcia, Ludovico Pimpin and Marta Gervacio Blas were given substancial legacies in the will and testament of Maxima Santos. To determine whether she had actually complied with the promise made in Exhibit "A", there is herein set forth a list only of the fishponds and their respective areas as contained in the list of properties she acquired as her share in the conjugal partnership, which list includes, besides many ricelands as well as residential lots, thus: 31. Paco, Obando, Bulacan 32. Pangjolo, Obando 34. Batang Pirasuan, Lubao, Pampanga 35. Calangian, Lubao, Pampanga 38. Bakuling, Lubao, Pampanga 39. Bakuling, Lubao, Pampanga 40. Bangkal, Sinubli 41. Tagulod, 44. Bangkal Pugad (a) (b) (c) 45. Magtapat Bangkal, Lubao, Pampanga (a) (b) (c) 46. Pinanganakan, Lubao, Pampanga 47. Emigdio Lingid, Lubao, Pampanga 48. Propios, Lubao, Pampanga 5.8396 has. 3.5857 11.9515 30.2059 215.4325 8.3763 23.0730 6.8692 34.2779 51.7919 2.5202 18.0024 7.3265 53.5180 159.0078 34.5229 80.5382 " " " " " " " " " " " " " " " "

49. Batang Mabuanbuan, Sexmoan, Pampanga 50. Binatang Mabuanbuan, Sexmoan, Pampanga 51. Sapang Magtua, Sexmoan, Pampanga 52. Kay Limpin, Sexmoan, Pampanga 53. Calise Mabalumbum, Sexmoan, Pampanga 54. Messapinit Kineke, Sexmoan, Pampanga

43.3350

"

3.5069 56,8242 5.0130

" " "

23.8935

"

(a) (b) (c) (d) (e) (f) (g) (h) (i)

5.2972 5.9230 1.4638 1.4638 2.8316 10.4412 3.9033 11.9263 6.0574 23.3989 147.1242 10.000 21.6435 16.0000 1045.7863

" " " " " " " " " " " " " " "

55. Dalang, Banga, Sexmoan, Pampanga 62. Alaminos, Pangasinan 80. Mangasu Sexmoan, Pampanga 81. Don Tomas, Sexmoan, Pampanga 82. Matikling, Lubao, Pampanga Total area ............................... (See Record on Record, pp. 195241.)

In her will, Maxima Santos devised to Marta Gervacio Blas the 80-hectare fishpond situated in Lubao, Pampanga. The fishpond devised is evidently that designated as "Propios" in Lubao, Pampanga, item No. 8 in the list of properties adjudicated to her in the project of partition. (Record on Appeal, p. 215.) Considering that the total area of the fishponds amount to 1045.7863 hectares, the 80 hectares devised to Marta Gervacio Blas is not even one-tenth of the total area of the fishponds. Add to this the fact that in the will she imposed upon Marta Gervacio Blas de Chivi an existing obligation on said fishponds, namely, its lease in 1957 and the duty to pay out of the rentals thereof an obligation to the Rehabilitation Finance Corporation RFC (Ibid., pp. 262-263.) Angelina Blas was given only a lot of 150 square meters in Hulong Duhat, Malabon, Rizal, and Leony Blas, the sum of P300.00 (Ibid., p. 264.) chanrobles virtual law library It is evident from a consideration of the above figures and facts that Maxima Santos did not comply with her obligation to devise one-half of her conjugal properties to the heirs and legatees of her husband. She does not state that she had complied with such obligation in her will. If she intended to comply therewith by giving some of the heirs of Simeon Blas the properties mentioned above, the most that can be considered in her favor is to deduct the value of said properties from the total amount of properties which she had undertaken to convey upon her death.chanroblesvirtualawlibrary chanrobles virtual law library

All the issues in the pleadings of the parties and in their respective briefs, have now been fully discussed and considered. Reiterating what we have stated above, we declare that by Exhibit "A", a compromise to avoid litigation, Maxima Santos promised to devise to the heirs and legatees of her husband Simeon Blas, one-half of the properties she received as her share in the conjugal partnership of herself and her husband, which share is specified in the project of partition submitted by herself on March 14, 1939 in the settlement of the estate of her husband, and which is found on pages 195 to 240 of the record on appeal and on pages 27 to 46 of the project of partition, submitted by Maxima Santos herself before the Court of First Instance of Rizal in Civil Case No. 6707, entitled "Testamentaria del Finado Don Simeon Blas, Maxima Santos Vda. de Bias, Administradora"; and that she failed to comply with her aforementioned obligation. (Exhibit "A") chanrobles virtual law library WHEREFORE, the judgment appealed from is hereby reversed and the defendant-appellee, administratrix of the estate of Maxima Santos, is ordered to convey and deliver one-half of the properties adjudicated o Maxima Santos as her share in the conjugal properties in said Civil Case No. 6707, entitled "Testamentaria del Finado Don Simeon Blas, Maxima Santos Vda. de Blas, Administradora", to the heirs and the legatees of her husband Simeon Blas. Considering that all said heirs and legatees, designated in the will of Simeon Blas as the persons for whose benefit Exhibit "A" had been executed, have not appeared in these proceedings, the record is hereby remanded to the court below, with instructions that, after the conveyance of the properties hereinabove ordered had been effected, the said heirs and legatees (of Simeon Blas) file adversary pleadings to determine the participation of each and every one of them in said properties. Costs against the defendant- appellee Rosalina Santos.chanroblesvirtualawlibrary chanrobles virtual law library G.R. No. 125888 August 13, 1998 SPOUSES ERNESTO and EVELYN SICAD, petitioners, vs. COURT OF APPEALS, CATALINO VALDERRAMA, JUDY CRISTINA M. VALDERRAMA and JESUS ANTONIO VALDERRAMA, respondents. NARVASA, C.J.: The issue raised in the appeal by certiorari at bar centers on the character of a deed of donation executed by the late Aurora Virto DA. de Motinola of the City of Iloilo as either inter vivos or mortis causa. That deed, entitled "DEED OF DONATION INTER VIVOS," 1 was executed by Montinola on December 11, 1979. It named as donees her grandchildren, namely: Catalino Valderrama, Judy Cristina Valderrama and Jesus Antonio Valderrama: and treated of a parcel of land, Lot 3231 of the Cadastral Survey of Panay, located at Brgy. Pawa, Panay, Capiz, covered by Transfer Certificate of Title No. T-16105 in the name of Montinola. The deed also contained the signatures of the donees in acknowledgment of their acceptance of the donation. Montinola's Secretary, Gloria Salvilla, afterwards presented the deed for recording in the Property Registry, and the Register of Deeds cancelled TCT No. T-16105 (the donor's title) and, in its place, issued TCT No. T-16622 on February 7, 1980, in the names of the donees. 2 Montinola however retained the owner's duplicate copy of the new title (No. T-16622), as well as the property itself, until she transferred the same ten (10) years later, on July 10, 1990, to the spouses, Ernesto and Evelyn Sicad. On March 12, 1987, Aurora Montinola drew up a deed of revocation of the donation, 3 and caused it to be annotated as an adverse claim on TCT No. T-16622 (issued, as aforestated, in her grandchildren's names). Then, on August 24, 1990, she filed a petition with the Regional Trial Court in Roxas City for the cancellation of said TCT No. T-16622 and the reinstatement of TCT No. T- 16105 (in her name), the case being docketed as Special Proceeding No. 3311. Her petition was founded on the theory that the donation to her three (3) grandchildren was one mortis causa which thus had to comply with the formalities of a will; and since it had not, the donation was void and could not effectively serve as basis for the cancellation of TCT No. T-16105 and the issuance in its place of TCT No. T-16622. The donees (Montinola's grandchildren) opposed the petition. In their opposition dated August 29, 1990, they averred that the donation in their favor was one inter vivos which, having fully complied with the requirements therefor set out in Article 729 of the Civil Code, was perfectly valid and efficacious. They also expressed doubt about the sincerity of their grandmother's intention to recover the donated property, since she had not pursued the matter of its revocation after having it annotated as an adverse claim. The case, originally treated as a special proceeding, was subsequently considered by the lower Court as an ordinary civil action in view of the allegations and issues raised in the pleadings. Pre-trial was had, followed by trial on the merits which was concluded with the filing of the parties' memoranda. The Trial Court then rendered judgment on March 27, 1991, holding that the donation was indeed one inter vivos, and dismissing Aurora Montinola's petition for lack of merit. 4 The matter of its revocation was not passed upon. Montinola elevated the case to the Court of Appeals, her appeal being docketed as CA-G.R. CV No. 33202. She however died on March 10, 1993, 5 while the appeal was pending. Shortly after Montinola's demise, a "Manifestation and Motion" dated March 31, 1993 was filed by Ernesto Sicad and Evelyn Bofill-Sicad, herein petitioners, 6 in which they (a) alleged that they had become the owners of the property covered by TCT No. T-16622 in virtue of a "deed of definite sale dated May 25, 1992" accomplished by Montinola in their favor, which was confirmed by "an affidavit dated November 26, 1997 also executed by the latter, and (b) prayed that they be substituted as appellants and allowed to prosecute the case in their own behalf. Another motion was subsequently presented under date of April 7, 1993, this time by the legal heirs of Aurora Montinola, namely: Ofelia M. de Leon, Estela M. Jaen and Teresita M. Valderama. They declared that they were not interested in pursuing the case, and asked that the appeal be withdrawn. Montinola's counsel opposed the motion. On June 21, 1993, the Court of Appeals issued a Resolution: (a) ordering the substitution of the persons above mentioned Ofelia de Leon, Estela M, Jaen, and Teresita M. Valderama as plaintiffs-appellants in place of the late Aurora Montinola, as well as the joinder of the spouses Ernesto and Evelyn Bofill-Sicad as additional appellants; 7 and (b) denying the motion for the withdrawal of the appeal. On June 30, 1995, the Eighth Division of the Court of Appeals promulgated its Decision on the case affirming the judgment of the Regional Trial Court; 8 and on July 31, 1996, it denied the separate motions for reconsideration filed by Ofelia M. de Leon, Estela M. Jaen, and Teresita M. Valderrama, on the one hand, and by the spouses, Ernest and Evelyn Sicad, on the other. 9 The Sicad Spouses have appealed to this Court; and here, they contend that the following errors were committed by the Appellate Tribunal, to wit: 1) ** in ruling that the donation was inter vivos and in not giving due weight to the revocation of the donation; and

2) ** in not ordering that the case be remanded for further reception of evidence. 10 The Comment filed for private respondents (the donees) under date of December 19, 1996 deals with what they consider the "principal issue in this case ** (i.e.) whether the donation is mortis causa or inter vivos," and sets forth the argument that the "donor clearly intended to effect the immediate transfer of ownership to the donees." that the prohibition in the deed of donation "against selling the property within ten (10) years after the death of the donor does not indicate that the donation ismortis causa," that the donor's "alleged act of physically keeping the title does not suggest any intention to defer the effectivity of the donation," that the "payment of real property taxes is consistent with the donor's' reservation of the right of usufruct," that the donor's intent "is not determined by ** (her) self-serving post-execution declarations," the "donation was never effectively revoked," and petitioners "have waived their right to question the proceedings in the trial court." 11 The Reply of the Sicad Spouses dated March 14, 1997 reiterates their thesis that the donation was mortis causa, that "the provisions of the deed of donation indicate that it was intended to take effect upon the death of the donor," that "the circumstances surrounding the execution of the deed, and the subsequent actions of the donor incontrovertibly signify the donor's intent to transfer the property only after her death," that the donor "did not intend to give effect to the donation," and that the procedure adopted by the Trial Court in the case was fatally defective. 12 A "Rejoinder" dated April 3, 1997 was then submitted by the Valderramas, traversing the assertions of the Reply. 13 Considering the focus of the opposing parties, and their conflicting theories, on the intention of Aurora Montinola in executing the document entitled "Deed of Donation Inter Vivos," it is needful to review the circumstances of the signing of that document by Montinola, as ostensible donor, and her grandchildren, as ostensible donees. The evidence establishes that on December 11, 1979, when the deed of donation prepared by Montinola's lawyer (Atty. Treas) was read and explained by the latter to the parties, Montinola expressed her wish that the donation take effect only after ten (10) years from her death, and that the deed include a prohibition on the sale of the property for such period. Accordingly, a new proviso was inserted in the deed reading: "however, the donees shall not sell or encumber the properties herein donated within 10 years after the death of the donor." 14 The actuality of the subsequent insertion of this new proviso is apparent on the face of the instrument: the intercalation is easily perceived and identified it was clearly typed on a different machine, and is crammed into the space between the penultimate paragraph of the deed and that immediately preceding it. 15 Not only did Aurora Montinola order the insertion in the deed of that restrictive proviso, but also, after recordation of the deed of donation, she never stopped treating the property as her own. She continued, as explicity authorized in the deed itself, to possess the property, enjoy its fruits and otherwise exercise the rights of dominion, paying the property taxes as they fell due all these she did until she transferred the Property to the Sicad Spouses on July 10, 1990. She did not give the new certificate of title to the ostensible donees but retained it, too, until she delivered it to the Sicads on the occasion of the sale of the property to them. In any event, the delivery of the title to the donees would have served no useful purpose since, as just stated, they were prohibited to effect any sale or encumbrance thereof for a period of ten (10) years after the ostensible donor's decease. And consistent with these acts denoting retention of ownership of the property was Montinola's openly expressed view that the donation was ineffectual and could not be given effect even after ten (10) years from her death. For this view she sought to obtain judicial approval. She brought suit on August 24, 1990 to cancel TCT No. T-16622 (issued to her grandchildren) premised precisely on the invalidity of the donation for failure to comply with the requisites of testamentary dispositions. Before that, she attempted to undo the conveyance to her grandchildren by executing a deed of revocation of the donation on March 12, 1987, and causing annotation thereof as an adverse claim on said TCT No. T-16622. She also exercised indisputable acts of ownership over said property by executing, as just stated, deeds intended to pass title over it to third parties petitioners herein. 16 As already intimated, the real nature of a deed is to be ascertained by both its language and the intention of the parties as demonstrated by the circumstances attendant upon its execution. In this respect, case law has laid down significant parameters. Thus, in a decision handed down in 1946, 17 this Court construed a deed purporting to be a donation inter vivosto be in truth one mortis causa because it stipulated (like the one now being inquired into) "that all rents, proceeds, fruits, of the donated properties shall remain for the exclusive benefit and disposal of the donor, Margarita David, during her lifetime; and that, without the knowledge and consent of the donor, the donated properties could not be disposed of in any way, whether by sale, mortgage, barter, or in any other way possible," On these essential premises, the Court said, such a donation must be deemed one "mortis causa, because the combined effect of the circumstances surrounding the execution of the deed of donation and of the above-quoted clauses thereof ** (was that) the most essential elements of ownership the right to dispose of the donated properties and the right to enjoy the products, profits, possession remained with Margarita David during her lifetime, and would accrue to the donees only after Margarita David's death." So, too, in the case at bar, did these rights remain with Aurora Montinola during her lifetime, and could not pass to the donees until ten (10) years after her death. In another case decided in 1954 involving a similar issue, Bonsato v. Court of Appeals, 18 this Court emphasized that the decisive characteristics of a donation mortis causa, which it had taken into account in David v. Sison, were that "the donor not only reserved for herself all the fruits of the property allegedly conveyed, but what is even more important, specially provided that "without the knowledge and consent of the donor, the donated properties could not be disposed of in any way,; thereby denying to the transferees the most essential attribute of ownership, the power to dispose of the properties." A donation which purports to be one inter vivos but withholds from the donee the right to dispose of the donated property during the donor's lifetime is in truth one mortis causa. In a donation mortis causa "the right of disposition is not transferred to the donee while the donor is still alive." 19 In the instant case, nothing of any consequence was transferred by the deed of donation in question to Montinola's grandchildren, the ostensible donees. They did not get possession of the property donated. They did not acquire the right to the fruits thereof, or any other right of dominion over the property. More importantly, they did not acquire the right to dispose of the property this would accrue to them only after ten (10) years from Montinola's death. Indeed, they never even laid hands on the certificate of title to the same. They were therefore simply "paper owners" of the donated property. All these circumstances, including, to repeat, the explicit provisions of the deed of donation reserving the exercise of rights of ownership to the donee and prohibiting the sale or encumbrance of the property until ten (10) years after her death ineluctably lead to the conclusion that the donation in question was a donation mortis causa, contemplating a transfer of ownership to the donees only after the donor's demise. The case of Alejandro v. Geraldez 20 cited by the Court of Appeals in support of its challenged judgment is not quite relevant. For in the deed of donation there in issue, there was a partial relinquishment of the right to dispose of the property, in the event only that this became necessary "to defray the expenses and support of the donors." That limited right to dispose of the donated lots, said this Court, "implies that ownership had passed to ** (the donees) by means of the donation and **, therefore, the donation was already effective during the donors' lifetime. That is a characteristic of a donation inter vivos." On the other hand, in the case at bar, the donees were expressly prohibited to make any disposition of any nature or for any purpose whatever during the donor's lifetime, and until ten (10) years after her death a prohibition which, it may be added,

makes inapplicable the ruling in Castro v. Court of Appeals, 21 where no such prohibition was imposed, and the donor retained only the usufruct over the property. The Valderramas' argument that the donation is inter vivos in character and that the prohibition against their disposition of the donated property is merely a condition which, if violated, would give cause for its revocation, begs the question. It assumes that they have the right to make a disposition of the property, which they do not. The argument also makes no sense, because if they had the right to dispose of the property and did in fact dispose of it to a third person, the revocation of the donation they speak of would be of no utility or benefit to the donor, since such a revocation would not necessarily result in the restoration of the donor's ownership and enjoyment of the property. It is also error to suppose that the donation under review should be deemed one inter vivos simply because founded on considerations of love and affection. In Alejandro v. Geraldez, supra, 22 this Court also observed that "the fact that the donation is given in consideration of love and affection ** is not a characteristic of donations inter vivos (solely) because transfers mortis causa may also be made for the same reason." Similarly, in Bonsato v. Court of Appeals, supra, this Court opined that the fact "that the conveyance was due to the affection of the donor for the donees and the services rendered by the latter, is of no particular significance in determining whether the deeds, Exhs. "1" and "2," constitute transfers inter vivosor not, because a legacy may have identical motivation." 23 Finally, it is germane to advert to the legal principle in Article 1378 of the Civil Code to the effect that in case of doubt relative to a gratuitous contract, the construction must be that entailing "the least transmission of rights and interests," 24 The donation in question, though denominated inter vivos, is in truth one mortis causa; it is void because the essential requisites for its validity have not been complied with. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 33202 dated June 30, 1995 as well as the Resolution denying reconsideration thereof, and the Decision of the Regional Trial Court in Special Case No. 3311 are SET ASIDE. The Deed of Donation Inter Vivos (Exh. "A") executed by Aurora Virto Vda. de Montinola on December 11, 1979 in favor of Catalino M. Valderrama, Judy Cristina M. Valderrama and Jesus Antonio M. Valderrama is declared null and void. The Register of Deeds of Roxas City is directed to cancel Transfer Certificate of Title No. T-16622, revive and reinstate Transfer Certificate of Title No. T-16105. SO ORDERED. A.M. No. 2026-CFI December 19, 1981 NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents. AQUINO, J.: Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably aforged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself? That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which reveal the following tangled strands of human relationship: Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923). Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had accumulated some cash in two banks. Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R). In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case). Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record). On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street. Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn. Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case). On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record. In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof. That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment order. In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record). On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counter-petition for administration and preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick. Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record). To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged will was falsified (p. 109, Record). Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23, 1975. To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-125, Record). Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record). Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of the nonappearance of her counsel at the hearing. She moved for the reconsideration of that order. In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her (pp. 208-209, Record). Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record). Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record). Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding. About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.) Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition. Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix. Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits Marcelina. She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should she persist, she might lose her pension from the Federal Government. Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the testatrix. Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline in her letter dated September 11, 1978 to President Marcos. Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she

(Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal Government. The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report dated October 7, 1981. On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void. Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment. The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981). Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case for having allegedly become moot and academic. We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void win should have inherited the decedent's estate. A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code). Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of wellknown legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215). Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119). In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660). The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix". Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive. Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness. In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed. Under the circumstances, we find his negligence and dereliction of duty to be inexcusable. WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25, 1981). The case against respondent Yuipco has become moot and academic because she is no longer employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044CFI November 21, 1980, 101 SCRA 225). SO ORDERED. G.R. No. L-1787 August 27, 1948 Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee, vs. AGUSTIN LIBORO, oppositor-appellant. Tirona, Gutierrez and Adorable for appellant. Ramon Diokno for appellee. TUASON, J.: In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor. The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect. The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numerical words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction for the disposition of the marker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page one. Abangan vs. Abangan,supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue. Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses is assailed under this heading. On the merits we do not believe that the appellant's contention deserves serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of witnesses generally occur in the details of a certain incident, after a long series of questioning, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in relating their impressions they should not agree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.) The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.) With reference to the second assignment of error, we do not share the opinion that the trial court communicated an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J., 164.) In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to the evidence is to correct evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight. Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's understanding of the language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect. The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs. G.R. No. L-4067 November 29, 1951 In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, Petitioner, vs. JULIANA LACUESTA, ET AL., Respondents. PARAS, C.J.: chanrobles virtual law library This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause: We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.chanroblesvirtualawlibrary chanrobles virtual law library In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) BIBIANA ILLEGIBLE

(Sgd.) "ROSENDA CORTES

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.chanroblesvirtualawlibrary chanrobles virtual law library In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.chanroblesvirtualawlibrary chanrobles virtual law library It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.chanroblesvirtualawlibrary chanrobles virtual law library What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.chanroblesvirtualawlibrary chanrobles virtual law library Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library G.R. No. L-15153 August 31, 1960 In the Matter of the summary settlement of the Estate of the deceased ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, et al., oppositors-appellants. T. de los Santos for appellee. Climaco and Climaco for appellants. LABARADOR, J.: Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made: The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate. In view of the fact that the appeal involves a question of law the said court has certified the case to us. The facts as found by the trial court are as follows: It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis supplied) The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed? The present law, Article 805 of the Civil Code, in part provides as follows: Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witness in the presence of the testator and of one another. (Emphasis supplied.)

The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows: No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis supplied). Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700: It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the witness signing at the request of the testator. Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one forms given above. He did not do so, however, and this is failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it. The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489). In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction. It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate. WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner. G.R. No. L-5971 February 27, 1911 BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-appellant. Valerio Fontanilla and Andres Asprer for appellant. Anacleto Diaz for appellees. CARSON, J.: The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument. A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased. The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature." In the case just cited, on which the trial court relied, we held that: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to

prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will. The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant. G.R. No. L-36033 November 5, 1982 IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent. Erasmo M. Diola counsel for petition. Hon. Avelino S. Rosal in his own behalf. GUTIERREZ, JR. J.: This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator. In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix. Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution. The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate. Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance. The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. Meanwhile, the petitioner filed a motion for the appointment of special administrator. Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses. The petitioner decided to file the present petition. For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another? Article 805 of the Civil Code provides: Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that 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 the instrumental witnesses, and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be interpreted to them. The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page. On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig

after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature. We find the petition meritorious. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911). Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification. The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449). The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103). Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will. The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order. We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page". In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used: The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations. Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach: ... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause. WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs. SO ORDERED. G.R. No. L-40804 January 31, 1978 ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA, AMOR DANILA, MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA NISTA, HEIRS OF DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and ADELAIDA NISTA, petitioners, vs. COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS OF BUENAVENTURA GUERRA,respondents.

Ernesto C. Hidalgo for petitioners. Romulo S. Brion & Florentino M. Poonin for private respondents. GUERRERO, J.: Appeal by way of certiorari of the decision 1 of the Court of Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista Petitioner-appellee, versus Buenaventura Guerra, et al., Oppositors -Appellants, " denying and disallowing the probate of the second last will and codicil of the late Eugenia Danila previously probated by the Court of First Instance of Laguna Branch III at San Pablo City. The facts are rotated in the appealed decision. the pertinent portions of which state: It appears that on June 2, 1966, Adelaida Nista who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament dated March 9, 1963 (Exhibit H) and codicil dated April 18, 1963 (Exhibit L) of the late Eugenia Danila who died on May 21, 1966. The petitioner prayed that after due notice and proper hearing, the alleged will and codicil be probates and allowed and that she or any other person be appointed as administrator of the testatrix's estate. She also prayed that in case no opposition thereto be interposed and the value of the estate be less than P10,000.00, said estate be summarily settled in accordance with the Rules. Buenaventura and Marcelina (Martina) both surnamed Guerra filed an opposition on July 18, 1966 and an amended opposition on August 19, 1967, to the petition alleging among others that they are the legally adopted son and daughter of the late spouses Florentino Guerra and Eugenia Danila (Exhibit 1); that the purported will and codicil subject of the petition (Exhibits H and L) were procured through fraud and undue influence; that the formalities requited by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix; that the late Eugenia Danila had already executed on November 5, 1951 her last will and testament (Exhibit 3) which was duly probated (Exhibit 4) and not revoked or annulled during the lifetime of the testatrix, and that the petitioner is not competent and qualified to act as administration of the estate. On November 4, 1968, the petitioner and the oppositors, assisted by their respective counsels, entered into a Compromise Agreement with the following terms and conditions, thus: 1. That oppositors Buenaventura Guerra and Marcelina (Martina) Guerra are the legally adopted son and daughter, respectively, of the deceased spouses, Florentino Guerra and Eugenia Manila; 2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia Danila died on May 21, 1966, at San Pablo City, but during her lifetime, she had already sold, donated or disposed of all her properties, some of which to Marcelina Martina Guerra, as indicated and confirmed in paragraph 13 of the Complaint in Civil Case No. SP620, entitled Marcelina Guerra versus Adelaida Nista, et al., and Which We hereby 'likewise admit and confirm; 3. That, however, with respect to the parcel of riceland covered by TCT No. T-5559 of the Register of Deeds of San Pablo City, which oppositors believe to be the estate left and undisposed of at the time of the death of the owner thereof, Eugenia Danila it now appears that there is a Deed of Donation covering the same together with another parcel of coconut land situated at Barrio San Ignacio, San Pablo City, with an area of 19,905 sq.m., and covered by Tax Declaration No. 31286, executed by the late Eugenia Danila in favor of Adelaida Nista, as per Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of Notary Public Pio Aquino of San Pablo city; 4. That inasmuch as the above-mentioned parcel of coconut and has been earlier donated inter vivos and validly conveyed on November 15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as shown by Doc. No. 237, Page No. 49, Series of 1965, under Notarial Register XV of Notary Public Atty. Romulo S. Brion of San Pablo City, the inclusion of said parcel in the subsequent donation to Adelaida Nista is admittedly considered a mistake and of no force and effect and will in no way prejudice the ownership and right of Marcelina Martina Guerra over the said parcel; that as a matter of fact Whatever rights and interests Adelaida Nista has or may still have thereon are already considered waived and renounced in favor of Marcelina Martina Guerra; 5. That in view of the fact that the riceland mentioned in paragraph 3 of the foregoing appears to have already been disposed of by Eugenia Danila in favor of petitioner Adelaida Nista which the parties hereto do not now contest, there is therefore no more estate left by the said deceased Eugenia Danila to he disposed of by the will sought to be probated in this proceedings; that consequently, and for the sake of peace and harmony money among the relations and kins and adopted children of the deceased Eugenia Danila and with the further aim of settling differences among themselves, the will and codicil of Eugenia Danila submitted to this Honorable Court by the petitioner for probate, are considered abrogated and set aside; 6. That as the late Eugenia Danila has incurred debts to private persons during her lifetime, which in addition to the burial and incidental expenses amounts to SIX THOUSAND EIGHT HUNDRED PESOS (P6,800.00) her adopted daughter, Marcelina (Martina) Guerra is now determined to settle the same, but herein petitioner Adelaida Nista hereby agrees to contribute to Marcelina (Martina) Guerra for the settlement of the said indebtedness in the amount of THREE THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine Currency, the same to be delivered by Adelaida Nista to Marcelina (Martina) Guerra at the latter's residence at Rizal Avenue, San Pablo City, on or about February 28, 1969; 7. That should there be any other property of the deceased Eugenia Danila that may later on be discovered to be undisposed of as yet by Eugenia Danila during her lifetime, the same should be considered as exclusive property of her adopted children and heirs, Buenaventura Guerra and Marcelina (Martina) Guerra and any right of the petitioner and signatories hereto, with respect to said property or properties, shall be deemed waived and renounced in favor of said Buenaventura and Marcelina (Martina) Guerra; and 8. That with the exception of the foregoing agreement, parties hereto waived and renounce further claim against each other, and the above-entitled case. (Exh. 6) This Agreement was approved by the lower court in a judgment readings as follows: WHEREFORE, said compromise agreement, being not contrary to public policy, law and moral, the same is hereby approved and judgment is hereby rendered in accordance with the terms and conditions set forth in the above- quoted compromise

agreement, which is hereby made an integral part of the dispositive portion of this decision, and the parties are strictly enjoined to comply with the same. (Exh. 7) On November 16, 1968, Rosario de Ramos, Miguel Danila Felix Danila Miguel Gavino Amor Danila Consolacion Santos and Miguel Danila son of the late Fortunato Danila filed a motion for leave to intervene as co-petitioners alleging that being instituted heirs or devisees, they have rights and interests to protect in the estate of the late Eugenia Danila They also filed a reply partly admitting and denying the material allegations in the opposition to the petition and alleging among other things, that oppositors repudiated their institution as heirs and executors when they failed to cause the recording in the Register of Deeds of San Pablo City the will and testament dated November 5, 1951 (Exhibit 3) in accordance with the Rules and committed acts of ingratitude when they abandoned the testatrix and denied her support after they managed, through fraud and undue influence, to secure the schedule of partition dated January 15, 1962. The Intervenors prayed for the probate and/or allowance of the will and codicil (Exhibits H and L), respectively and the appointment of any of them in as administrator of said estate. On December 6, 1968, the intervenors also filed a motion for new trial and/or re-hearing and/or relief from judgment and to set aside the judgment based on compromise dated November 5, 1968. The oppositors interposed an opposition to the motion to which the intervenors filed their reply. The lower court resolved the motions in an order the dispositive portion reading, thus: FOR ALL THE FOREGOING the Court hereby makes the following dispositions (1) Movants Rosario de Ramos, Miguel C. Danila Miguela Gavino Amor Danila Consolacion Santos, Miguel A. Danila and Raymundo Danila are allowed and admitted to intervene to this proceeding as Party Petitioners; and likewise admitted in their reply to the amended opposition of November 11, 1968; (2) The compromise agreement dated October 15, 1968 by and between Petitioner Adelaida Nista and oppositors Buenaventura Guerra and Marcelina Guerra Martina is disapproved, except as regards their respective lawful rights in the subject estate; and, accordingly, the judgment on compromise rendered by this Court on November 5, 1968 is reconsidered and set aside; and (3) The original Petition and amended opposition to probate of the alleged will and codicil stand. xxx xxx xxx The lower court also denied the motion for the appointment of a special administrator filed by the intervenors. xxx xxx xxx A motion for reconsideration of the foregoing order was filed by the intervenors co-petitioners but the motion was denied. xxx xxx xxx On February 9, 1971, a motion for the substitution of Irene, Crispina, Cristina Casiano, Edilberto Felisa, Guerra in place of their father, the oppositor Buenaventura Guerra who died on January 23, 1971, was filed and granted by the lower court. After trial on the merits, the lower court rendered its decision dated July 6, 1971 allowing the probate of the wilt In that decision, although two of the attesting witness Odon Sarmiento and Rosendo Paz, testified that they did not see the testatrix Eugenia Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court gave more weight and ment to the .'straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who assisted in the execution of the wilt that the testatrix and the three (3) instrumental witnesses signed the will in the presence of each other, and that with respect to the codicil the same manner was likewise observed as corroborated to by the testimony of another lawyer, Atty. Manuel Alvero who was also present during the execution of the codicil. The dispositive portion of the decision reads: WHEREFORE, it appearing that the late Eugenia Danila had testamentary capacity when she executed the will, Exh. H., and the codicil Exh. L, and that said will and codicil were duly signed by her and the three attesting witnesses and acknowledged before a Notary Public in accordance with the formalities prescribed by law, the said will and codicil are hereby declared probated. No evidence having been adduced regarding the qualification and fitness of any of the intervenors- co-petitioners to act as executors, the appointment of executors of the will and codicil is held pending until after due hearing on the matter. SO ORDERED. Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the foregoing decision to the Court of Appeals The latter court, in its derision dated May 12, 1975 ruled that the lower court acted correctly in setting aside its judgment approving the Compromise Agreement and in allowing the intervenor petitioners to participate in the instant probate proceedings; however, it disallowed the probate of the will on the that the evidence failed to establish that the testatrix Eugenia Danila signed her will in the presence of the instrumental witness in accordance with Article 805 of the Civil Code, as testified to by the two surviving instrumental witnesses. In this present appeal petitioners vigorously insists on constitutional grounds the nullity of the decision of respondent court but We deem it needless to consider the same as it is not necessary in resolving this appeal on the following assigned errors: (A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN WEIGHT TO THE MANIFESTATION CLAUSES IN THE TESTAMENT AND CODICIL ANNEX B (PETITION) AND INSTEAD IT GAVE CREDENCE TO THE TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL ACKNOWLEDGEMENT OF THE NOTARY PUBLIC; AND (B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING EVIDENCE FOR THEIR ALLOWANCE. We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in question. The main point in controversy here is whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary. Petitioners argue that the attestation clauses of the win and codicil which were signed by the instrumental witnesses are admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against due execution. Petitioners further maintain that it is error for respondent court to give credence to the testimony of the biased witnesses as against their own attestation to the fact of

due execution and over the testimonial account of the Notary Public who was also present during the execution and before whom right after, the deeds were acknowledged. Private respondents, on the other hand reiterate in their contention the declaration of the two surviving witnesses, Odon Sarmiento and Rosendo Paz, that the win was not signed by the testatrix before their presence, which is strengthened by two photographic evidence showing only the two witnesses in the act of signing, there being no picture of the same occasion showing the testatrix signing the will. Respondent court holds the view that where there was an opportunity to take pictures it is not understandable why pictures were taken of the witnesses and not of the testatrix. It concludes that the absence of the latter's picture to complete the evidence belies the testimony of Atty. Barcenas that the testatrix and the witnesses did sign the will and the codicil in the presence of each other. The oppositors' argument is untenable. There is ample and satisfactory evidence to convince us that the will and codicil were executed in accordance with the formalities required by law. It appears positively and convincingly that the documents were prepared by a lawyer, Atty. Manuel Alvero The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. The object is to close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. 2 If there should be any stress on the participation of lawyers in the execution of a wig, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the above-named lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the presumption of ty in the execution of the questioned documents. There were no incidents brought to the attention of the trial court to arouse suspicion of anomaly. While the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation claim far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. The presumption of regularity can of course be overcome by clear and convincing evidence to the contrary, but not easily by the mere expediency of the negative testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix sign the will. A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will, such negative statement must be examined with extra care. For in this regard It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerating what they really know, saw, heard or did; they may be biased and, therefore, tell only half-truths to mislead the court or favor one party to the prejudice of the others. This cannot be said of the condition and Physical appearance of the questioned document. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. 3 Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause Which, significantly is a separate memorandum or record of the facts surrounding that the conduct of execution. Once signed by the attesting witnesses, it that compliance with the indispensable legal formalities had been observed. This Court had previously hold that the attestation clause basically contracts the pretense of undue ex execution which later on may be made by the attesting witnesses. 4 In the attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signature following that of the testatrix show that they have in fact at not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attention clause. 5 By signing the wilt the witnesses impliedly to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like. 6 In this jurisdiction, all the attesting witness to a will if available, must be called to prove the wilt Under this circumstance, they become "forced witnesses" " and their declaration derogatory to the probate of the will need not bind the proponent hence, the latter may present other proof of due exemption even if contrary to the testimony of or all of the at, testing witness. 7 As a rule, if any or all of the submitting witness testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witness and from all the evidence presented that the will was executed and attested in the manner by law. 8 Accordingly, although the subscribing witnesses to a contested will are the best witness in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise it may be overcome by any competent evidence, direct or circubstantial. 9 In the case at bar, the s bear a disparity in the quality of the testimonies of Odon Sarmiento and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo A. Barcenas, on the other. The testimony of Odon Sarmiento was contradicted by his own admission. Though his admission to the effect that "when Eugenia Danila signed the testament (he) and the two other attesting witnesses Rosendo Paz and Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was made extrajudicially, it was not squarely refuted when inquired upon during the trial. With respect to the testimony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. The records show that this attesting witness was fetched by Felix Danila from his place of work in order to act as witness to a wilt Rosendo Paz did not know what the document he signed was all about. Although he performed his function as an attesting witness, his participation was rather passive. We do not expect, therefore, that his testimony, "half-hearted" as that of Odon Sarmiento, be as candid and complete as one proceeding from a keen mind fully attentive to the details of the execution of the deeds. Quite differently, Atty. Ricardo A. Barcenas, more than a direct witness himself, was Purposely there to oversee the accomplishment of the will and codicil. His testimony is an account of what he actually heard and saw during the conduct of his profession. There is no evidence to show that this lawyer was motivated by any material interest to take sides or that his statement is truth perverted. It has been regarded that the function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. 10 In the absence of any showing of self-interest that might possibly have warped his judgment and twisted his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave consideration. 11 An appraise of a lawyer's participation has been succinctly stated by the Court in Fernandez v. Tantoco, supra, this wise: In weighing the testimony of the attesting witnesses to a will, his statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to anticipate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other persons to retain those incidents in his memory.

One final point, the absence of a photograph of the testator Eugenia Danila in the act of signing her will. The fact that the only pictures available are those which show the Witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses. We must stress that the pictures are worthy only of what they show and prove and not of what they did not speak of including the events they failed to capture. The probate of a will is a proceeding not embued with adverse character, wherein courts should relax the rules on evidence "to the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a reported will may be probated or denied probate. 12 We find here that the failure to imprint in photographs all the stages in the execution of the win does not serve any persuasive effect nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it defeat, by any ordinary or special reason, the presentation of other competent evidence intended to confirm a fact otherwise existent but not confirmed by the photographic evidence. The probate court having satisfied itself that the win and codicil were executed in accordance with the formalities required by law, and there being no indication of abuse of discretion on its part, We find no error committed or any exceptional circumstance warranting the subsequent reversal of its decision allowing the probate of the deeds in question. WHEREFORE, the decision of respondent Court of Appeals is hereby reversed in so far its it disallowed the probate of the will and codicil. With costs against respondents. SO ORDERED. G.R. No. L-32213 November 26, 1973 AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents. Paul G. Gorrez for petitioner. Mario D. Ortiz for respondent Manuel B. Lugay. ESGUERRA, J.: Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course. The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument. After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied] To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed. FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside. Cost against the appellee. G.R. No. 74695 September 14, 1993 In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents. Vicente R. Redor for petitioner. Bayani Ma. Rino for and in his own behalf. BELLOSILLO, J.: Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado. On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna. As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them. Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies. A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick. When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied. On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served. The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with? Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977. The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads: Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with. We agree with petitioner in this respect. Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him. The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit: The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . . Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with. Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions. That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires. Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed. We sustain private respondent's stand and necessarily, the petition must be denied. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14 In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 15 Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17 As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded (emphasis supplied). Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served. WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner. SO ORDERED. G.R. No. L-3362 March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrix-appellee, vs. PILAR GIL VDA. DE MURCIANO, oppositor-appellant. Eligio C. Lagman for appellant. Reyes, Albert and Agcaoili for appellee. JUGO, J.: The Court of First Instance of Manila admitted to probate the alleged will and testament of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only question of law. Her counsel assigns the two following alleged errors: Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos Gil no ha sido otogar de acuerdo con la ley. Segundo Error. Erro finalmente a legalizar el referido testamento. The alleged will read as follows: Primera Pagina (1) EN EL NOMBRE DE DIOS, AMEN Yo, Carlos Gil, de 66 aos de edad, residente de Porac, Pampanga, I. F., hallandome sano y en pleno goce de mis facultades intelectuales, libre y expontaneamente, sin violencia, coaccion, dolo o influencia ilegal de persona extraa, otorgo y ordeno este mi testamento y ultima voluntad en castellano, idioma que poseo y entiendo, de la manera siguiente: 1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos hijos; 2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga; 3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e inmuebles situados en Manila y en Pampanga, bajo la condicion de que cuando esta muera y si hayan bienes remanentes heredadas por ella de mi, que dichos bienes remanentes se adjudicaran a Don Carlos Worrel. 4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel a quien tengo absoluta confianza, con relevacion de fianza; En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas, utiles con la clausula de atestiguamiento en presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve. CARLOS GIL Testificacion: Segunda Pagina (2) Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que precede este escrito en la lengua castellana que conoce la testadora, compuesto de dos paginas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros. (Fdo.) ALFREDO T. RIVERA (Fdo.) RAMON MENDIOLA (Fdo.) MARIANO OMAA Regarding the correctness and accuracy of the above-copied alleged will, the court below said: . . . The only copy available is a printed form contained in the record appeal in case G.R. No. L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and appellant vs. Roberto Toledo y Gil, oppositor and appellee." Both parties are agreed that this is a true and correct copy of the will. (P. 10, Record on Appeal). The appeal being only on questions of law the above finding of the court below cannot be disputed. The conclusions of law reached by said court are based on it. Moreover, the finding is correctly based on the evidence of record. The parties agreed that said copy is true and correct. If it were otherwise, they would not have so agreed, considering that the defect is of an essential character and is fatal to the validity of the attestation clause. It will be noted that the attestation clause above quoted does not state that the alleged testor signed the will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise purpose of the attestation clause is to certify that the testator signed the will, this being the most essential element of the clause. Without it there is no attestation at all. It is said that the court may correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the substance of the statement. It is claimed that the correction may be made by inference. If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line? Following that procedure we would be making interpolations by inferences, implication, and even by internalcircumtantial evidence. This would be done in the face of the clear, uniquivocal, language of the statute as to how the attestation clause should be made. It is to be supposed that the drafter of the alleged will read the clear words of the statute

when he prepared it. For the court to supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act No. 190, before it was amended, contained the following provision: . . . But the absence of such form of attestation shall not render the will invalid if it proven that the will was in fact signed and attested as in this section provided. However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the contents of the attestation clause, entirely suppressed the above-quoted provision. This would show that the purpose of the amending act was to surround the execution of a will with greater guarantees and solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by inferences, implications, and internal circumstantial evidence? Even in ordinary cases the law requires certain requisities for the conclusiveness of circumstantial evidence. It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body of the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator should have made an attestation clause, which is the function of the witness. But the important point is that he attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is evident that one cannot certify his own signature, for it does not increase the evidence of its authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding zero to an insufficient amount does not make it sufficient. It is said that the rules of statutory construction are applicable to documents and wills. This is true, but said rules apply to the body of the will, containing the testamentary provisions, but not to the attestation clause, which must be so clear that it should not require any construction. The parties have cited pro and con several decisions of the Supreme Court, some of which are said to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended by Act No. 2645. In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say: 1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE OF CIVIL PROCEDURE CONSTRUED. The right to dispose of the property by will is governed entirely by statute. The law is here found in section 618 of the Code of Civil Procedure, as amended. The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. 2. ID.; ID.; ATTESTATION. The Philippine authorities relating to the attestation clause to wills reviewed. The cases of Sao vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of Quintana, supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar, supra, modified. 3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of Civil Procedure, as amended, which provides that "The attestation clause 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" applied and enforced. 4. ID.; ID.; ID.; ID. An attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. (Sano vs. Quintana, supra.) In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief Justice of the Supreme Court, in his decision made the following pronouncement: . . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los testadores firmaron el testamento en presencia de los tres testigos instrumentales y que estos firmaron el testamento los unos en presencia de los otros, pero no se hace constar que dichos testigos firmaron el testamento enpresencia de los testadores, ni que estos y aquellos firmaron todas y cada una de las paginas del testamento los primeros en presencia de los segundos y vice-versa. En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio intestado. The Supreme Court fully affirmed the decision, laying down the following doctrine: 1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. The attestation clause must be made in strict conformity with the requirements of section 618 of Act No. 190, as amended. Where said clause fails to show on its face a full compliance with those requirements, the defect constitutes sufficient ground for the disallowance of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted to establish facts not appearing on the attestation clause, and where said evidence has been admitted it should not be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.). 2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to give effect to the intention of the Legislature. Statutes prescribing formalities to be observed in the execution of wills are very strictly construed. Courts cannot supply the defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.) It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban vs. Gorchocase, supra, but not to the extent of validating an attestation clause similar to that involved herein. In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was complete, and it was also signed by the two attesting witnesses. For this reason, the court said: In reality, it appears that it is the testatrix who makes the declaration about the points contained in the above described paragraph; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of section 1 of Act No. 2645 which provides that: . . . (p. 381,supra.) The attestation clause involved herein is very different. In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that: An attestation clause to a will, copied from a form book and reading: "We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testatrix, whose name is signed hereinabove, has publish unto us the foregoing will consisting of two pages as her Last Will and Testament, and has signed the same in our presence, and in witness whereof

we have each signed the same and each page thereof in the presence of said testatrix and in the presence of each other," held not to be fatally defective and to conform to the law. This very different from the attestation clause in the case at bar. In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will was objected to on the ground that, although the attestation clause stated that "each of the pages of which the said will is composed" was signed by the testatrix at the left margin and at the foot of the fifth page, it did not state that the signature was made in the presence of the witnesses. It was held, however, that said deficiency was cured by the phrase "as well as by each of us in the presence of the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and, unlike the attestation clause in the present case, does not necessitate any correction. In the body of the will the testatrix stated that she signed in the presence of each and all of the three witnesses. This was considered as a corroboration, but it was unnecessary. In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil., 745), the attestation clause reads as follows: Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente cada uno en presencia de los otros, o de los demas y de la del mismo testsador, Valerio Leynez. El testamento consta de dos (2) paginas solamente. The objection was that the attestation clause did not state that the testator and the witnesses signed each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore, that in case of the will complied with all the requisites for its due execution. In the instant case, essential words were omitted. In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18, 1939), the attestation clause reads as follows: Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro paginasen papel de maquinilla. Que igualmente estabamos presentes cuando el firmo este documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de esta escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de cada uno de nosotros. The above attestation clause is substantially perfect. The only clerical error is that it says "testador" instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders unnecessary the use of the verb "firmamos." In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause did not state the number of pages of the will. However, it was held that this deficiency was cured by the will itself, which stated that it consisted of three pages and in fact it had three pages. In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the Court of Appeals, the attestation clause (translated in Spanish) reads as follows: Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de leer y de leer y de leerle el mencionado testamento, y despues de que ella dio su conformidad, firmo y marco con su dedo pulgar derecho en nuestra presencia y en presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos, firmamos enpresencia de la testadora y en presencia de cada uno de nosotros. It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the witnesses of each and every page of the will, but the omission is cured by the fact that their signatures appear on every page. This attestation clause is different from that involved in the present case. There is no reason why wills should not be executed by complying substantially with the clear requisites of the law, leaving it to the courts to supply essential elements. The right to dispose of property by will is not natural but statutory, and statutory requirements should be satisfied. The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon the compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. For that purpose only intention of the Legislature, as expressed in the language of the statute, can be considered by the court, and whether the will as presented, shows a compliance with the statute. Estate of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re Seaman's Estate, 80 Pac., 700, 701.) In interpreting the legislature's thought, courts have rigidly opposed any exception tending to weaken the basic principle underlying the law, the chief purpose of which is to see that the testator's wishes are observed. It is possible, in some or many cases, a decedent may have thought he had made a will, but the statute says he had not. The question is not one of his intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . . truly expressing the intertions of the testator are made without observations of the required forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . . has taught of it best and has therefore determined, to run the risk of frustrating (that intention, . . . in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. . . . The evil probably to arise by giving to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533. It has always been the policy of this court to sustain a will if it is legally possible to do so, but we cannot break down the legislative barriers protecting a man's property after death, even if a situation may be presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419, 420.) In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged will and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It is so ordered. G.R. No. 103554 May 28, 1993 TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,

vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents. Palma, Palma & Associates for petitioners. Emilio Lumontad, Jr. for private respondents. REGALADO, J.: Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code. The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2 Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4 Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate. 5 Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6 In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7 On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then. 8 On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that: . . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors. All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law. 9 Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another. On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus: The question therefore is whether the attestation clause in question may be considered as having substantialy complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us (emphasis supplied). To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed

and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the law." 11 Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero. We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made in aid of the rationale for our resolution of the controversy. 1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation should state the number of 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 the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witness, it shall be interpreted to them. In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. 16 The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that they should be in writing and must have been executed in a language or dialect known to the testator. 17 However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses. An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21 Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages,and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; 23 whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. 24 Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses. 28 In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills, in the following manner: The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . . 29 2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us. It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31 In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation. It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. We agree. What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit: Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.) While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33 We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions: . . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.) 3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written. The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another. Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the indirection what in law he cannot do directly. 4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in the Civil Code. One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that 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, hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position. The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47 Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor: In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning withAbangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra. In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will. It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse. In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal, decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law. The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further provided in the same section that "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." Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed. We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text). But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60Alcala vs. De Villa, 61 Sabado vs. Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and established a trend toward an application of the liberal view. The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal

approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission: The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of his property. However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941. In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads: "Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 829." 65 The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results." It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.67 WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent. SO ORDERED. G.R. No. L-12190 August 30, 1958 TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee. Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee. BENGZON, J.: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words: Nobyembre 5, 1951. Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod: Vicente Esguerra, Sr. ............................................. 5 Bahagi

Fausto E. Gan ......................................................... 2 Bahagi Rosario E. Gan ......................................................... 2 Bahagi

Filomena Alto .......................................................... 1 Bahagi Beatriz Alto .............................................................. 1 Bahagi At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng

Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan. (Lagda) Felicidad E. Alto-Yap. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows: Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will. In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.) Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of

other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation? The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 an implied admission that such loss or theft renders it useless.. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whetherin the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilegeto comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . . This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6 PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.7 Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner. G.R. No. L-38338 January 28, 1985 IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, vs. ANDRES R. DE JESUS, JR., respondent. Raul S. Sison Law Office for petitioners. Rafael Dinglasan, Jr. for heir M. Roxas. Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus. GUTIERREZ, JR., J.: This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus. The antecedent facts which led to the filing of this petition are undisputed. After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus. On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973. Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of the

deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a lawyer. ... The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother. Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution. On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law. Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with. On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads: WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside. The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads: ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail. Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed. We agree with the petitioner. This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modem tendency with respect to the formalities in the execution of wills. (Report of the Code Commission, p. 103) In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that: xxx xxx xxx ... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent. Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus, xxx xxx xxx ... More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745). If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case. We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated. SO ORDERED. G.R. No. L-40207 September 28, 1984 ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents. Leandro H. Fernandez for petitioner. Antonio Quintos and Jose M. Yacat for respondents. MELENCIO-HERRERA, J.: On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968. The holographic Will reads in full as follows: My Last will and Testament In the name of God, Amen. I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament. 1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory. xxx xxx xxx The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature. ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder. After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part: The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel. The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C". WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby denied. SO ORDERED. From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for interpretation." From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not theoriginal unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2 However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived: ... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l). Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la enmienda del guarismo ultimo del ao en que fue extendido 3 (Emphasis ours). WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No costs. SO ORDERED. G.R. No. L-20234 December 23, 1964 PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents. Philip M. Alo and Crispin M. Menchavez for petitioners. Nicolas Jumapao for respondents. REYES, J.B.L., J.: Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition. The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4): It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca). The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that: ... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not

contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid." Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna. The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322). Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct. But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950). WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs. G.R. No. L-37453 May 25, 1979 RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents. Francisco D. Rilloraza, Jr. for petitioners. Angel A. Sison for private respondent. GUERRERO, J.: This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. * It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix. There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latters residence prior an- d up to the time of her death. The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages. The attestation clause, which is found on page four, reads as follows: PATUNAY NG MGA SAKSI Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito. At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as aforementioned. The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the deceased on the following grounds: 1. that the same is not genuine; and in the alternative 2. that the same was not executed and attested as required by law; 3. that, at the time of the alleged execution of the purported wilt the decedent lacked testamentary capacity due to old age and sickness; and in the second alternative 4. That the purported WW was procured through undue and improper pressure and influence on the part of the principal beneficiary, and/or of some other person for her benefit. Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo rendered judgment, the summary and dispositive portions of which read: Passing in summary upon the grounds advanced by the oppositor, this Court finds: 1. That there is no iota of evidence to support the contentio that the purported will of the deceased was procured through undue and improper pressure and influence on the part of the petitioner, or of some other person for her benefit; 2. That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the purported will, the deceased lacked testamentary capacity due to old age and sickness; 3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not executed and attested as required by law; 4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting witnesses on April 15, 1961. WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament of the deceased Isabel Gabriel is here by DISALLOWED. From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holding that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required by law, hence allow ed probate. Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda, 5and on August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration stating that: The oppositor-appellee contends that the preponderance of evidence shows that the supposed last wig and testament of Isabel Gabriel was not executed in accordance with law because the same was signed on several occasions, that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other. The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the evidence. We have carefully re-examined the oral and documentary evidence of record, There is no reason to alter the findings of fact in the decision of this Court sought to be set aside. 7 In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and for insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence. Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition. The petitioner in her brief makes the following assignment of errors: I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witness II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the win Exhibit "F", was unexpected and coincidental. III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F". IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion. V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya. VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the win was improperly executed. VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in rejecting said testimonies. IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of the power of supervision. X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel. It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: ... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact ... Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly because its premises are borne out by the record or based upon substantial evidence and what is more, when such findings are correct. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule We have thus stated above is not without some recognized exceptions. Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of errors. Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wigs with respect to the qualifications of witnesses. We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a win. These Articles state: Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 806 of this Code. "Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines, (2) Those who have been convicted of falsification of a document, perjury or false testimony. Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended). In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write. It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible witness under Article 805. Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and employee much less the humble or financial position of a person do not disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788). Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay. " emphasis supplied). In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a win, does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite: A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340). As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341). Expression 'credible witness' in relation to attestation of wins means 'competent witness that is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342) The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.) Credible witnesses as used in the statute relating to wills, means competent witnesses that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343) In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a good standing in the community and reputed to be trustworthy and reliable. Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact of the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed, and in holding that the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the findings of fact of the appellate court are binding and controlling which We cannot review, subject to certain exceptions which We win consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution of the win and that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no prior appointment with him, but he explained that he was available for any business transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's decision. The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in these facts and that the securing of these residence certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will. We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office. It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself." As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit ' L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and their respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous occasion or date prior to April 15, 1961. But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public document executed and attested through the intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar. Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion merits Our approval because tills conclusion is supported and borne out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued" and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A5113274 issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names, residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will without bond. The technical description of the properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso. " It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of the respondent appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears to be fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public himself. Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of the appellant on

Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not have been present to witness the will on that day is purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal." In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very purpose of the attestation clause which is made for the purpose of preserving in permanent form a record of the facts attending the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue importance to the picturetakings as proof that the win was improperly executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was present when the will was signed because what matters here is not the photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held: "The trial court gave undue importance to the picture takings, jumping therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their Identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous." Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless. What was important was that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of the legal requisites for the execution or probate of a will. Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the type in which the will was typewritten but which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed unimportant details which could have been affected by the lapse of time and the treachery of human memory such that by themselves would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical and coinciding with each other with regard to details of an incident and that witnesses are not expected to remember all details. Human experience teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. In as much as not all those who witness an incident are impressed in like manner, it is but natural that in relating their impressions, they should not agree in the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429). It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial courts and generally, the appellate court should not interfere with the same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances established in the record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed and that there is nothing in the entire record to support the conclusion of the court a quo that the will signing occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts. Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde

Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in question." It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was of sound disposing memory when she executed her will. Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967). Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or reservation. The above holding simply synthesize the resolutions we have heretofore made in respect ' to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected. The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel. We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told her that this cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during which incident Matilde Orobia was not present. Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who constitute the best evidence of the will making have testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court of Appeals. WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner. SO ORDERED. G.R. No. L-26317 January 29, 1927 Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees. Nicanor Tavora for appellant. Jose Rivera for appellees. JOHNSON, J.: The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac. Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved: That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney for the opponents, testified that the original Exhibit A could not be found. For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed. The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by the law; that the same had been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1 After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered. G.R. No. L-32328 September 30, 1977 TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO DE MOLO, petitioners-appellants vs. FELINO MALOTO and FELINO MALOTO, oppositors-appellees. Ramon C. Zamora, Lorenzo E. Coloso, Jose L. Castigador, Arthur Defensor & Sixto Demaisip and Flores, Macapagal, Ocampo & Balbastro for petitioners-appellants. Nacianceno G. Rico & Felipe G. Espinosa for oppositors-appellees. FERNANDEZ, J.: This is a petition to review the order dated April 13, 1970 of the Court of First Instance of Iloilo, Branch III, in Special Proceeding No. 2176 dismissing the petition for the probate of a will. 1 One Adriana Maloto died on October 20, 1963 in Iloilo City, her place of residence. Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the belief that decedent died intestate, commenced on November 4, 1963 in the Court of First Instance of iloilo an intestate proceeding docketed as Special Proceeding No. 1736. In the course of said intestate proceeding, Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto and Felino Maloto executed an extrajudicial Partition of the estate of Adriana Maloto on February 1, 1964 whereby they adjudicated said estate unto themselves in the proportion of one-fourth (1/4) share for each. 2 The Court of First Instance of iloilo, then prescribed by Judge Emigdio V. Nietes, ed he diamond partition on March approve extrajudicial on March 21, 1964. 3 On April 1, 1967, a document dated January 3, 1940 purporting to be the last with and testament of Adriana Maloto was delivered to the Clerk of Art of the Art of First Instant of Iloilo. 4 It appears that Aldina Maloto Casiano Consent Maloto, Panfilo Maloto, and Felino Maloto are named as heirs but Maloto Casiano and Constancio Maloto allegedly have shares in said with which are bigger, different and more valuable than what they obtained in the extrajudicial partition. The said will also allegedly made dispositions to certain devisees and/or legatees, among whom being the Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

On May 24, 1967, Aldina Maloto Casiano and Constancio Maloto filed in Special Proceeding No. 1736 a motion (1) for reconsideration; (2) annulment of the proceedings; and (3) for the allowance of the last will and testament of Adriana Maloto. 5 The Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also filed in Special Proceeding No. 1736 petitions for the allowance of the will of Adriana Maloto. 6 Panfilo Maloto and Felino Maloto opposed the motion of Aldina Maloto Casiano and Constancio Maloto. The Court of First Instance of iloilo, through Judge Emigdio V. Nietes, issued an order dated November 16, 1968 denying the motion to reopen the proceedings on the ground that the said motion had been filed out of time. A motion for reconsideration of said order was denied. Petitioners appealed from the order of denial. On motion of Panfilo Maloto and Felino Maloto, the lower court dismissed the appeal on the ground that it was filed late. A motion for reconsideration of the order of dismissal was denied. A supplemental order dated April 1, 1969 stating as additional ground that the appeal is improper was issued. The petitioners filed a petition for certiorari and mandamus with the Supreme Court docketed as G.R. No. L-30479. This Court dismissed the petition in a resolution dated May 14, 1969 which reads: L-010479 (Constancio Maloto, et al, vs. Hon. Emigdio V. Nietes, etc., et al.) THE COURT RESOLVED to dismiss the petition for certiorari and mandamus, without passing on the issue of whether or not the petitioners appeal from the order of November 16, 1968 of respondent Judge was made on time, it appearing that the more appropriate remedy of petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged will in question. 7 Acting on the petitioners' motion for reconsideration and citation, fl Art issued a resolution dated July 15, 1969 which reads: Acting on the motion for reconsideration and/or clarification filed by petitioner in G. R. No. L-30479, Constancio Maloto, et al., vs. Hon. Emigdio V. Nietes, etc. et al., dated June 11, 1969, the Court resolved to DENY the motion for reconsideration, with the clarification that the matter of whether or not the pertinent findings of facts of respondent Judge in his herein subject order of November 16, 1968 constitute res adjudicata may be raised in the proceedings for probate of the alleged will in question indicated in the resolution of this Court of May 14, 1969, wherein such matter will be more appropriately determined. 8 Thereupon, the herein petitioners commenced Special Proceeding No. 2176 in the Court of First Instance of Iloilo for the probate of the alleged last will and testament of Adriana Maloto. 9 Panfilo Maloto and Felino Maloto filed an opposition with a motion to dismiss on the following grounds: I. THAT THE ALLEGED WILL SOUGHT TO BE PROBATED HAD BEEN DESTROYED AND REVOKED BY THE TESTATRIX. II. THAT THE INSTANT PETITION FOR PROBATE IS NOW BARRED BY PRIOR JUDGMENT OR ORDER (OR RES JUDICATA). III. THAT THE ESTATE OF THE LATE ADRIANA MALOTO HAD ALREADY PASSED OUT OF EXISTENCE AND TITLE THERETO HAD ALREADY ARRESTED IN THE DISTRIBUTEES OF THEIR ASSIGNS. IV. THAT PETITIONERS ALDINA MALOTO CASIANO AND CONSTANCIO MALOTO ARE NOW ESTOPPED FROM SEEKING THE REMEDY TENDER THIS PROCEEDING, THEY HAVING CEASED TO BE INTERESTED PARTIES. 10 In an order dated April 13, 1970, the probate court dismissed the petition for the probate of the with on the basis of the finding of said court in Special Proceeding No. 1736 that the alleged win sought to be Probated had been destroyed and revoked by the testatrix. The probate court sustained the oppositors' contention that the petition for probate is now barred by the order of November 16, 1968 in the intestate estate proceeding, Special Proceeding No. 1736. 11 The herein petitioners allege that the probate court committed the following errors: I THE LOWER COURT ERRED IN HOLDING THAT THE .kl).NIITTEI)I,Y GENUINE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO (THE SUBJECT OF PETITION FOR PROBATE SPECIAL PROCEEDING NO. 2176, CFI ILOILO) HAD PREVIOUSLY BEEN REVOKED BY HER (ADRIANA MALOTO). II THE LOWER COURT ERRED IN HOLDING THAT SAID PETITION (FOR PROBATE OF THE AFORESAID LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO) IS NOW BARRED BY PRIOR JUDGMENT. I. E., THAT THE MATTER CONCERNED IS NOW RES ADJUDICATA III THE LOWER COURT, THEREFORE, ERRED IN DISMISSING THE AFORESAID PETITION FOR PROBATE OF THE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO AND IN NOT, INSTEAD, GIVING IT (THE PETITION ABOVECITED DUE COURSE.12 The instant petition for review is meritorious. The probate court had no jurisdiction to entertain the petition for the probate of the alleged with of Adriana Maloto in Special Proceeding No. 1736. Indeed, the motion to reopen the was denied because the same was filed out of time. Moreover, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. As a matter of fact, the probate court in Special Proceeding No. 1736 stated in the order of November 16, 1968 that "Movants should have filed a separate action for the probate of the Will." 13 And this court stated in its resolution of May 14, 1969 that "The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged with in question." In view of the foregoing, the order of November 16, 1968 in Special Proceeding No. 1736 is not a bar to the present petition for the probate of the alleged will of Adriana Maloto. WHEREFORE, the order dated April 13, 1970 dismissing the petition for the probate of the alleged will of Adriana Maloto is hereby set aside and the lower court is directed to proceed with the hearing of the petition in Special Proceeding No. 2176 on the merits, with costs against the respondents. SO ORDERED. 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. Salonga, Ordoez, Yap, Sicat and Associates for petitioners. Ruben Austria for himself and co-petitioners. De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz. Villareal, Almacen, Navarra and Amores for other respondents. CASTRO, J.: On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after due hearing. The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children. On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria. Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs. Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby granted." In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained written depositions from two of them denying any knowledge of the pertinent adoption proceedings. On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meez who entered an appearance separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted, to properties not disposed of in the will of the decedent. On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which were not disposed of in the will. The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration. A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964. Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's testamentary dispositions. The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in its extrinsic validity since it bears the imprimatur of duly conducted probate proceedings. The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article, 842 of the Civil Code which reads: One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false. The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads: The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent portions of the will of the deceased which recite: III Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz. xxx xxx xxx Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod: A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati () ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati () ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria. The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all the basis of the institution being solely her belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will? Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications. And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand. Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless? 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 AustriaBenta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the testate by intestacy a result which would subvert the clear wishes of the decedent. Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1 Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate,2 as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect.3 A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her will.4 At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack.5 To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to state that, as borne by the records, the subsequent orders complained of served merely to clarify the first an act which the court could legally do. Every court has the

inherent power to amend and control its processes and orders so as to make them conformable to law and justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its powers as articulated by the Rules of Court.7 ACCORDINGLY, the present petition is denied, at petitioners cost. G.R. No. L-29300 June 21, 1978 PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners, vs. HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents. Haile Frivaldo for petitioners. Joaquin R Mitosis for private respondents. AQUINO, J.: In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January 10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon. The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed facts are as follows: 1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead. 2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor. 3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that the testator executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza, fraude o influencia indebida." 4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree of probate trial from the order of partition trial distribution. 5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuous possession of those lands en concepto de dueo trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They prayed that they be declared the owners of the lands trial that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696). 6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C. Maalac dismiss the complaint on the ground of res judicata in his order of August 14, 1952 wherein he said: It also appears that the plaintiffs and/or their predecessors-in-interest had intervened in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of contesting the probate of the will of (the) late Florentino Hitosis; trial had their opposition prospered trial the will denied of probate, the proceedings would have been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the estate of the said deceased would have been made in accordance with the provisions of law governing legal or intestate succession ... , in which case the said plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have succeeded to the ownership and possession of the 61 parcels of land in question forming part of his estate (art. 1003, Civil Code). However, the derision of the Court was adverse to them, when it their opposition trial ordered the probate of his will. From this decision (Annex K) legalizing the said will, the oppositors did not file any appeal within the period fixed by law, despite the fact that they were duly notified thereof, so that the said decision had become final trial it now constitutes a bar to any action that the plaintiffs may institute for the purpose of a redetermination of their rights to inherit the properties of the late Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No. 3171, in which the herein plaintiffs or their predecessors-in-interest had intervened as parties oppositors, constitutes a final judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of the late Florentino Hitosis; consequently, their present claim to the ownership trial possession of the 61 parcels of land in question is without any legal merit or basis. 7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. They prayed for the appointment of a receiver. 8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit, caused the execution trial simulation of the document purporting to be the last will trial testament of Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696 were decided trial which was re-docketed as Civil Case No. 2233). 9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration of his order setting aside that dismissal order. The petitioners or the defendants below contend in this certiorari case that the lower court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint. The issue is whether, under the facts set forth above, the private respondents have a cause of action the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land adjudicated under that will to the petitioners. We hold that the lower court committed a grave abuse of discretion in reconsideration its order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case. A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted. What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of The complaint of the same parties that the same court dismissed in 1952. It is evident from the allegations of the complaint trial from defendants' motion to dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription, acquisitive trial extinctive, or by what are known in the jus civile trial the jus gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284). Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249). The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court). We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court constitute bars by former judgment, Rule 39 of the Rules of Court provides: SEC. 49. Effect of judgments. The effect of a judgment or final order rendered by a court or judge of the Philippines, having jurisdiction to pronounce the judgment or order, may be as follows: (a) In case of a judgment or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or order is conclusive upon the title to the thing the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties trial their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating of the same thing trial under the same title trial in the same capacity; (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually trial necessarily included therein or necessary thereto. The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code). That means that the testator was of sound trial disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448). After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47). In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the decree of probate had become final. That case is summarized as follows:

Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His will was admitted to probate without objection. No appeal was taken from said order. It was admitted that due trial legal notice had been given to all parties. Fifteen months after the date of said order, a motion was presented in the lower court to have said will declared null and void, for the reason that fraud had been practised upon the deceased in the making of his will. Held: That under section 625 of Act No. 190, the only time given parties who are displeased with the order admitting to probate a will, for an appeal is the time given for appeals in ordinary actions; but without deciding whether or not an order admitting a will to probate will be opened for fraud, after the time allowed for an appeal has expired, when no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation in the same proceedings, raise questions relating to its due execution. The probate of a will is conclusive as to its due execution trial as to the testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069). On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142). It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to private respondents' complaint, The 1952 order of dismissal rendered by Judge Maalac in Civil Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April 14, 1978). The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the final adjudications in those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for the nullification of the final orders trial judgments in those two cases. It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra). After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four years from the discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159). To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed because the rule in article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of a contract does not prescribe", applies to wills. That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to voidcontracts, a ruling elevated to the category of a codal provision in article 1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court. An elementary knowledge of civil law could have alerted the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410 applies to wills. WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents. SO ORDERED. G.R. No. L-56340 June 24, 1983 SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents. Pelaez, Pelaez, & Pelaez Law Office for petitioners. Ceniza, Rama & Associates for private respondents. PLANA, J.: I. FACTS: This is a case of hereditary succession. Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship. On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu. On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P 5,000.00. On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and his

wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX. On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as special administrator. On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978. For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT. On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows: 1. A. Pastor, Jr. ...................................40.5% 2. E. Pelaez, Sr. ...................................15.0% 3. B. Quemada .......................................4.5% On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.] The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million pesos. The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration. Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order assailed is "legally valid. " On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration. Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order. In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00. Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the petition should be given due course. On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to reassign the case to another ponente."

Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in effect had been given due course. II. ISSUES: Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980. The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic win can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis. Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order. On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien. On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the implementing writ. III. DISCUSSION: 1. Issue of Ownership (a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.] (b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.) The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus: Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of the decedent in the Philippines. In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the Philippines have not been established. Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the validity of the same? Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted by the special administrator but not approved by the Probate Court) are to be excluded. Then came what purports to be the dispositive portion: Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows: (a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording. (b) There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or administrator has been appointed up to this time and - the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed.

(c) There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositor for the following reasons: 1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr. 2. To administer and to continue to put to prolific utilization of the properties of the decedent; 3. To keep and maintain the houses and other structures and belonging to the estate, since the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and inheritance taxes; (d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu,the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had been an extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal Revenue. The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan etc.), will be resolved in another order as separate incident, considering that this order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.) Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed " subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. " (c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu. (d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probable Order were only the matters properly adjudged in the said Order. (e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard. Based on the premises laid, the conclusion is obviously far-fetched. (f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute. 2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. * When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife. (b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in another court. (c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the Branch Clerk of this Court." (d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972. (e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained.

(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs. (g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will. 3. Propriety of certiorari Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari. Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned. (a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis. (b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.) (c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c]) (d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads: Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require. The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued. ... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution. The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.) (d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution. (e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied for. Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in the petition for certiorari states against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the properties subject of the execution was then still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR. Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not available to him since his motion for reconsideration of the execution order was still pending resolution by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R. SO ORDERED. G.R. No. 75773 April 17, 1990

TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO JIMENEZ, ANTONIO JIMENEZ, AMADEO JIMENEZ, MODESTO JIMENEZ and VIRGINIA JIMENEZ, petitioners, vs. HONORABLE INTERMEDIATE APPELLATE COURT, HON. AMANDA VALERA-CABIGAO, in her capacity as Presiding Judge, Regional Trial Court, Branch XXXVII, Lingayen, Pangasinan, LEONARDO JIMENEZ, JR. and CORAZON JIMENEZ, respondents. Simplicio M. Sevilleja for petitioners. Bitty S. Viliran for private respondents. Leonardo B. Jimenez, Jr. for respondents. FERNAN, CJ.: This is a petition for review on certiorari seeking to reverse and set aside the decision 1 of the Court of Appeals dated May 29, 1986 which dismissed the petition for certiorari and mandamus in AC-G.R. No. 06578 entitled "Tomas Jimenez, et. al. vs. Hon. Amanda Valera-Cabigao." The facts are as follows: The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children, namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the existence of the marriage, Lino Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan. After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on November 21, 1978. Thereafter, in April 1979, Virginia Jimenez filed a petition before the Court of First Instance of Pangasinan, Branch V, docketed as Special Proceedings No. 5346, praying to be appointed as administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the deceased spouses which included herein co-petitioners and the four children of Lino Jimenez by Consolacion Ungson, his previous wife. 2 In October, 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez, Sr., filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and Angeles from the petition, inasmuch as they are children of the union of Lino Jimenez and Consolacion Ungson and not of Lino Jimenez and Genoveva Caolboy and because they have already received their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon, Pangasinan. 3 On March 23, 1981, petitioner Virginia Jimenez was appointed administrator of the Intestate Estate of Lino Jimenez and Genoveva Caolboy. 4 On May 21, 1981, she filed an inventory of the estate of the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5) parcels of land in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino Jimenez. Private respondent Leonardo Jimenez, Jr. presented testimonial and documentary evidence in support of his motion while petitioner Virginia Jimenez, other than cross-examining the witnesses of Leonardo, presented no evidence of her own, oral or documentary. On September 29, 1981, the probate court ordered the exclusion of the five (5) parcels of land from the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr. which consisted among others of: (1) Tax Declaration showing that the subject properties were acquired during the conjugal partnership of Lino Jimenez and Consolacion Ungson; and, (2) a Deed of Sale dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties had been adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto, Leonardo, Alejandra and Angeles. 5 The motion for reconsideration of said order was denied on January 26, 1982. 6 Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and prohibition, docketed thereat as CA-G.R. No. SP13916, seeking the annulment of the order dated September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982, the Court of Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother, had admitted that the subject parcels of land had been adjudicated to the children of the previous nuptial; (2) the subject properties could not have been acquired during the marriage of Lino Jimenez to Genoveva Caolboy because they were already titled in the name of Lino Jimenez even prior to 1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of Virginia Jimenez was barred by prescription because it was only in 1981 when they questioned the adjudication of the subject properties, more than ten (10) years after Genoveva had admitted such adjudication in a public document in 1964; and, (4) petitioner Virginia Jimenez was guilty of laches. This decision became final and executory. 7 Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111, to recover possession/ownership of the subject five (5) parcels of land as part of the estate of Lino Jimenez and Genoveva Caolboy and to order private respondents to render an accounting of the produce therefrom. Private respondents moved for the dismissal of the complaint on the grounds that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November 18, 1982 and by prescription and laches. However, petitioners opposed the motion to dismiss contending that (1) the action was not barred by prior judgment because the probate court had no jurisdiction to determine with finality the question of ownership of the lots which must be ventilated in a separate action; and, (2) the action instituted in 1981 was not barred by prescription or laches because private respondents' forcible acquisition of the subject properties occurred only after the death of petitioners' mother, Genoveva Caolboy in 1978. On February 13, 1985, the trial court resolved to dismiss the complaint on the ground of res judicata. 8 On May 31, 1985, petitioners' motion for reconsideration of the resolution was denied. As earlier intimated, the petition forcertiorari and mandamus filed by petitioners before the appellate court was likewise denied due course and dismissed in a decision dated May 29, 1986. 9 Hence, this recourse. The issue in this case is whether in a settlement proceeding (testate or intestate) the lower court has jurisdiction to settle questions of ownership and whether res judicata exists as to bar petitioners' present action for the recovery of possession and ownership of the five (5) parcels of land. In the negative, is the present action for reconveyance barred by prescription and/or laches? We reverse. Petitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate, court's findings are not conclusive being prima facie, 10 a separate proceeding is necessary to establish the ownership of the five (5) parcels of land. 11 The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action. 12

All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. 13 The provisional character of the inclusion in the inventory of a contested property was again reiterated in the following cases: Pio Barreto Realty Development, Inc. vs. Court of Appeals, 14 Junquera vs. Borromeo, 15Borromeo vs. Canonoy, 16 Recto vs. de la Rosa. 17 It has also been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. 18 This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar. Res judicata 19 does not exist because of the difference in the causes of actions. Specifically in S.P. No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance of Pangasinan, Branch V in S.P. No. 5346 had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand. was lodged before the Regional Trial Court of Pangasinan, Branch XXXVII in the exercise of the court's general jurisdiction. It was, in fact, such "separate or ordinary proceedings" contemplated by the rules for a final determination of the issue of ownership of the disputed properties. To repeat, since the determination of the question of title to the subject properties in S.P. 5346 was merely provisional, petitioners are not barred from instituting the appropriate action in Civil Case No. 16111. Indeed, the grounds relied upon by private respondents in their motion to dismiss do not appear to be indubitable.Res judicata has been shown here to be unavailable and the other grounds of prescription and laches pleaded by private respondents are seriously disputed. The allegation in the complaint is that the heirs of Leonardo Jimenez, Sr. (referring to private respondents,) forcibly intruded into and took possession of the disputed properties only in 1978, after the death of Genoveva Caolboy. Since the action for reconveyance was instituted in 1984, it would appear that the same has not yet prescribed or otherwise barred by laches. There are a number of factual issues raised by petitioners before the lower court which cannot be resolved without the presentation of evidence at a full-blown trial and which make the grounds for dismissal dubitable. Among others, the alleged admission made by petitioners' mother in the deed of sale is vehemently denied, as well as the fact itself of adjudication, there being no showing that the conjugal partnership of Lino Jimenez and Consolacion Ungson had been liquidated nor that a judicial or extra-judicial settlement of the estate of Lino Jimenez was undertaken whereby such adjudication could have been effected. The grounds stated in the motion to dismiss not being indubitable, the trial court committed grave abuse of discretion in dismissing the complaint in Civil Case No. 16111. WHEREFORE, the questioned decision of the respondent appellate court is hereby REVERSED. Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan, Branch XXXVII is directed to proceed in said case with dispatch. SO ORDERED. G.R. No. L-24365 June 30, 1966 IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee, vs. MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant. MARIA HELEN CHRISTENSEN, oppositor and appellee. J. Salonga and L. M. Abellera for oppositor and appellee. Carlos Dominguez, Jr. for executor-appellee. M. R. Sotelo for appellant. MAKALINTAL, J.: Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484). In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749). On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees. The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate. The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case: 3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY. xxx xxx xxx

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted. xxx xxx xxx 12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike. The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which 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. On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads: ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate. Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate. Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains: Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la sealada para el caso de pretericion. El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde. ... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.) On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says: La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.) Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. Manresa continues: 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.1wph1.t xxx xxx xxx

B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.) La privacion de la legitima puede ser total o parcial. Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.) Again Sanchez Roman: QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.) The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir indeed her status as such is denied but is given a legacy of P3,600.00. While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows: RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento. El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 p. 937.) Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.) The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him. The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00. The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime. One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple. Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to

oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance. Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur. RESOLUTION July 30, 1967 MAKALINTAL, J.: Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of our decision, which reads as follows: One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours). Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be merely for the purpose of refuting the theory advanced by appellees and not for the purpose of having the rights of said heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositor-appellant. This point of course was not and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are not parties in this case. We have nevertheless called attention "to the limitations imposed by law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are valid under Philippine Law and must be given full force and effect;" and to give them full force and effect would precisely affect the legitime of oppositor-appellant. Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by eliminating the following phrase in the first sentence: "although no reference to it has been made in the brief for oppositor-appellant." 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 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 357C 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 deprived 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 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. G.R. No. 118449 February 11, 1998 LAURO G. VIZCONDE, petitioner, vs. COURT OF APPEALS, REGIONAL TRIAL COURT, Branch 120, Caloocan City, and RAMON G. NICOLAS,respondents. FRANCISCO, J.: Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children, viz., Carmela and Jennifer. Petitioner's wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and RicardoNicolas, an incompetent. Antonio predeceased his parents and is now survived by his widow, Zenaida, and their four children. On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of 10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos (P135,000.00), evidenced by a "Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT No. T-36734". 1 In view thereof, TCT No. V-554 covering the Valenzuela property was issued to Estrellita. 2 On March 30, 1990, Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00). 3 In June of the same year, Estrellita bought from Premier Homes, Inc., a parcel of land with improvements situated at Vinzon St., BF Homes, Paraaque (hereafter Paraaque property) using a portion of the proceeds of sale of the Valenzuela property. The remaining amount of the proceeds was used in buying a car while the balance was deposited in a bank. The following year an unfortunate event in petitioner's life occurred. Estrellita and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the "Vizconde Massacre". The findings of the investigation conducted by the NBI reveal that Estrellita died ahead of her daughters. 4 Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his daughters. Nevertheless, petitioner entered into an "Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver of Shares", 5 with Rafael and Salud, Estrellita's parents. The extra-judicial settlement provided for the division of the properties of Estrellita and her two daughters between petitioner and spouses Rafael and Salud. The properties include bank deposits, a car and the Paraaque property. The total value of the deposits deducting the funeral and other related

expenses in the burial of Estrellita, Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00). 6 The settlement gave fifty percent (50%) of the total amount of the bank deposits of Estrellita and her daughters to Rafael, except Savings Account No. 104-111211-0 under the name of Jennifer which involves a token amount. The other fifty percent (50%) was allotted to petitioner. The Paraaque property and the car and were also given to petitioner with Rafael and Salud waiving all their "claims, rights, ownership and participation as heirs" 7 in the said properties. On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita instituted an intestate estate proceeding 8docketed as Sp. Proc. No. C1679, with Branch 120 of the Regional Trial Court (RTC) of Caloocan City listing as heirs Salud, Ramon, Ricardo, and the wife (Zenaida) and children of Antonio. Teresita prayed to be appointed Special Administratrix of Rafael's estate. Additionally, she sought to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent brother Herein private respondent Ramon filed an opposition 9 dated March 24, 1993, praying to be appointed instead as Salud and Ricardo's guardian. Barely three weeks passed, Ramon filed another opposition 10 alleging, among others, that Estrellita was given the Valenzuela property by Rafael which she sold for not less than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded for the court's intervention "to determine the legality and validity of the intervivos distribution made by deceased Rafael to his children," 11 Estrellita included. On May 12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699, entitled "In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas" and averred that their legitime should come from the collation of all the properties distributed to his children by Rafael during his lifetime. 12 Ramon stated that herein petitioner is one of Rafael's children "by right of representation as the widower of deceased legitimate daughter of Estrellita." 13 In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as the guardian of Salud and Ricardo while Teresita, in turn, was appointed as the Special Administratrix of Rafael's estate. The court's Order did not include petitioner in the slate of Rafael's heirs. 14 Neither was the Paraaque property listed in its list of properties to be included in the estate. 15 Subsequently, the RTC in an Order dated January 5, 1994, removed Ramon as Salud and Ricardo's guardian for Selling his ward's property without the court's knowledge and permission. 16 Sometime on January 13, 1994, the RTC released an Order giving petitioner "ten (10) days . . . within which to file any appropriate petition or motion related to the pending petition insofar as the case is concerned and to file any opposition to any pending motion that has been filed by both the counsels for Ramon Nicolas and Teresita de Leon." In response, petitioner filed a Manifestation, dated January 19, 1994, stressing that he was neither a compulsory heir nor an intestate heir of Rafael and he has no interest to participate in the proceedings. The RTC noted said Manifestation in its Order dated February 2, 1994. 17 Despite the Manifestation, Ramon, through a motion dated February 14, 1994, moved to include petitioner in the intestate estate proceeding and asked that the Paraaque property, as well as the car and the balance of the proceeds of the sale of the Valenzuela property, be collated. 18 Acting on Ramon's motion, the trial court on March 10, 1994 granted the same in an Order which pertinently reads as follows: xxx xxx xxx On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case and considering the comment on his Manifestation, the same is hereby granted. 19 xxx xxx xxx Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon opposed. 20 On August 12, 1994, the RTC rendered an Order denying petitioner's motion for reconsideration. It provides: xxx xxx xxx The centerpoint of oppositor-applicant's argument is that spouses Vizconde were then financially incapable of having purchased or acquired for a valuable consideration the property at Valenzuela from the deceased Rafael Nicolas. Admittedly, the spouses Vizconde were then living with the deceased Rafael Nicolas in the latter's ancestral home. In fact, as the argument further goes, said spouses were dependent for support on the deceased Rafael Nicolas. And, Lauro Vizconde left for the United States in, defacto separation, from the family for sometime and returned to the Philippines only after the occurrence of violent deaths of Estrellita and her two daughters. To dispute the contention that the spouses Vizconde were financially incapable to buy the property from the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in business venture such as taxi business, canteen concessions and garment manufacturing. However, no competent evidence has been submitted to indubitably support the business undertakings adverted to. In fine, there is no sufficient evidence to show that the acquisition of the property from Rafael Nicolas was for a valuable consideration. Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father was gratuitous and the subject property in Paraaque which was purchased out of the proceeds of the said transfer of the property by the deceased Rafael Nicolas in favor of Estrellita, is subject to collation. WHEREFORE, the motion for reconsideration is hereby DENIED. 21 (Emphasis added) Petitioner filed a petition for certiorari and prohibition with respondent Court of Appeals. In its decision of December 14, 1994, respondent Court of Appeals 22 denied the petition stressing that the RTC correctly adjudicated the question on the title of the Valenzuela property as "the jurisdiction of the probate court extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate of the deceased (Cf.: Sec. 1, Rule 90, Revised Rules of Court)." 23 Dissatisfied, petitioner filed the instant petition for review on certiorari. Finding prima facie merit, the Court on December 4, 1995, gave due course to the petition and required the parties to submit their respective memoranda. The core issue hinges on the validity of the probate court's Order, which respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela property from Rafael to Estrellita and declaring the Paraaque property as subject to collation. The appeal is well taken. Basic principles of collation need to be emphasized at the outset. Article 1061 of the Civil Code speaks of collation. It states: Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the

testator. 24 Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. 25 The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor's will is to treat all his heirs equally, in the absence of any expression to the contrary. 26Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, 27the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee. 28 The attendant facts herein do not make a case of collation. We find that the probate court, as well as respondent Court of Appeals, committed reversible errors. First: The probate court erred in ordering the inclusion of petitioner in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafael's compulsory heirs. Article 887 of the Civil Code is clear on this point: Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the following, legitimate parents and ascendants, with respect to their legitimate children and ascendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. With respect to Rafael's estate, therefore, petitioner who was not even shown to be a creditor of Rafael is considered a third person or a stranger. 29 As such, petitioner may not be dragged into the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has no personality or interest in the said proceeding, 30 which petitioner correctly argued in his manifestation. 31 Second: As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate proceedings. 32 Such determination is provisional in character and is subject to final decision in a separate action to resolve title. 33 In the case at bench, however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject property between the concerned parties was gratuitous. The interpretation of the deed and the true intent of the contracting parties, as well as the presence or absence of consideration, are matters outside the probate court's jurisdiction. These issues should be ventilated in an appropriate action. We reiterate: . . . we are of the opinion and so hold, that a court which takes cognizance of testate or intestate proceedings has power and jurisdiction to determine whether or not the properties included therein or excluded therefrom belong prima facie to the deceased, although such a determination is not final or ultimate in nature, and without prejudice to the right of the interested parties, in a proper action, to raise the question bearing on the ownership or existence of the right or credit. 34 Third: The order of the probate court subjecting the Paraaque property to collation is premature. Records indicate that the intestate estate proceedings is still in its initiatory stage. We find nothing herein to indicate that the legitime of any of Rafael's heirs has been impaired to warrant collation. We thus advert to our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit: We are of the opinion that this contention is untenable. In accordance with the provisions of article 1035 35 of the Civil Code, it was the duty of the plaintiffs to allege and prove that the donations received by the defendants were inofficious in whole or in part and prejudiced the legitime or hereditary portion to which they are entitled. In the absence of evidence to that effect, the collation sought is untenable for lack of ground or basis therefor. Fourth: Even on the assumption that collation is appropriate in this case the probate court, nonetheless, made a reversible error in ordering collation of the Paraaque property. We note that what was transferred to Estrellita, by way of deed of sale, is the Valenzuela property. The Paraaque property which Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become collationable simply by reason thereof. Indeed, collation of the Paraaque property has no statutory basis. 36 The order of the probate court presupposes that the Paraaque property was gratuitously conveyed by Rafael to Estrellita. Records indicate, however, that the Paraaque property was conveyed for and in consideration of P900,000.00, 37 by Premier Homes, Inc., to Estrellita. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Paraaque property is not one of Rafael's heirs. Thus, the probate court's order of collation against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafael's estate. As it stands, collation of the Paraaque property is improper for, to repeat, collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory heirs which fact does not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public instrument, voluntarily and willfully waived any "claims, rights, ownership and participation as heir" 38 in the Paraaque property. Fifth: Finally, it is futile for the probate court to ascertain whether or not the Valenzuela property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value of the Valenzuela property. 39 Hence, even assuming that the Valenzuela property may be collated collation may not be allowed as the value of the Valenzuela property has long been returned to the estate of Rafael. Therefore, any determination by the probate court on the matter serves no valid and binding purpose. WHEREFORE, the decision of the Court of Appeals appealed from is hereby REVERSED AND SET ASIDE. SO ORDERED. G.R. No. 6878 September 13, 1913 MARCELINA EDROSO, petitioner-appellant, vs. PABLO and BASILIO SABLAN, opponents-appellees.

Francisco Dominguez for appellant. Crispin Oben for appellees. ARELLANO, C.J.: The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment. Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue and by this decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership. Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.) The Court of Land Registration denied the registration and the application appealed through a bill of exceptions. Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan. The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the land which are the subject matter of the application are required by law to be reserved a contention we regard as indefensible. Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. These are admitted facts. A very definite conclusions of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship. The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded. (Civil Code, art. 811.) Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature property required by law to be reserved is therefore in accordance with the law. But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to reserved. The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and finally, opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49). However that be, it is not superflous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code: In the absence of legitimate children and descendants of the deceased, his ascendants shall from him, to the exclusion of collaterals. The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrate any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have therefore been fully complied with. If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant. The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836. (Civil Code, art. 809.) In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law could full to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says. No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son. Proof testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish and not by operation of law.

Nor is the third assignments of error admissible that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial: The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them. (p. 91). The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her. The fourth assignments of error set up the defense of prescription of the right of action. The appellant alleges prescription of the opponent's right of action for requiring fulfillment of the obligation they attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribed in the time fixed in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to the reserved by force of law has not been invoked." (Eight allegation.) The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for those who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of the record). The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of article 8112 of the Civil Code, which went into effect in the Philippine in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce the same merely by granting the right of action to the persons in whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth allegations.) The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement of such right has prescribed, the only thing to be determined by this appeal is the question raised in the first assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry newly established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as the have slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the rights required to be reserved in SpanishPhilippine law, a brief disgression on the most essential points may not be out of place here. The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law states: The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit. The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day. Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says: Besides the reservation imposed by article 811, the widow or widower contracting a seconds marriage shall be obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she may have required from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration." The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 189, do not contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or mother contracts a second marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated: That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract second or later marriages, they do not thereby cease to be applicable to the right establishes in article 811, because, aside from the legal reason, which is the same in both cases, such must be the construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article 968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the principle of the law and of the common nature of said provisions not to hold them applicable to that right. Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in article 977 and 978 for the rights required by law to the reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which they are found." From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would have been able to institute, against the ascendant who must make the reservation, proceedings for the assurance and guaranty that article 977 and 978 grant to the children of a first marriage against their father or mother who has married again. The proceedings for assurance, under article 977; are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real property and appraisal of the personal property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which read thus: The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be require by the person who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same requisites as set forth in the preceding article (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to reserve the right the provisions with respect to the father. In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads as thus: Legal mortgage is established: 1. . . . 2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obliged to reserve it. This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should by noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation. Article 191 of the reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father." Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal representatives." Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the right must be reserved, but really the commencement thereof, enables them to exercise it at any time, since no limits is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of prescription against the exercise of such right of action cannot be sustained. Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land. Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision: Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common. (B. of E., p. 20.) It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who has the right to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights or using an enjoying, and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come into full ownership. The question set up in the first assignment of error of the appellant's brief is this: What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code? There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the person in whose favor the reservation is made. If that were so, the person holding the property could not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof. Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscure in the presence of that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other persons." (Manresa, VII, 189.) In another place he says: "We do not believe that the third opinion can now be maintained that is, that the surviving spouse (the person obliged by article 968 to make the reservation) can be regarded as a mere usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.) The ascendants who inherits from a descendants, whether by the latter's wish or by operation of law, requires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third degree who belong to the line whence the property proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition in of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that he has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the

hereditary owner and he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendants who holds the property required by article 811 to be reserved, and the father of mother required by article 986 to reserve the right, can dispose of the property they might itself, the former from his descendant and the latter from his of her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the right is required to be reserved in either case cannot perform any act whatsoever of disposal or of recovery. Article 975 states explicitly that the father or mother required by article 9687 to reserve the right may dispose of the property itself: Alienation of the property required by law to be reserved which may be made by the surviving spouse aftercontracting a second marriage shall be valid only if at his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage of Law. It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage survive." If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law says that the alienation subsists (to subject is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says: The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said conditions by expressly reserving that right in the registration. In such case, the child or legitimate descendants of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the person in whose favor the right is reserved and then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be valid but also in very way absolutely effective. Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendants must make the reservation. Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and obligations during the existence of the right required by law to be reserved," in these words: During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs. The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the article of the Code referring to use and usufruct. But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in article 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives with the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.) Another commentator corroborates the foregoing in every way. He says: The ascendants acquires that property with a condition subsequent, to wit, whether or not there exists at the time of his death relatives within the third degree of the descendants from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendants. If they do not exist, the ascendants can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendants may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give what does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will complete ownership, in fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary. (Morell, Estudios sobre bienes reservable, 304, 305.) The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do. On the other hand, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of the fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendants of whom they are relatives within the third degree, that it to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their rights has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in

view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as may even become absolute should that person die." Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendants from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." (Decision of December 30, 1897.) Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the appellant has made of the two parcels of land in question to a third party, because the conditional alienation that is permitted her is equivalent to an alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest. If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms: Cannot the heir of the property required by law to reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made degree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides? It is well known that the vendee under pacto de retracto acquires all the rights of the vendor: The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.) If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says: Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold, with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows by well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purpose of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more power and conclusive; ubi eadem ratio, eadem legis dispositivo. Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the applicants, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special findings as to costs. G.R. No. L-12957 March 24, 1961 CONSTANCIO SIENES, ET AL., plaintiffs-appellants, vs. FIDEL ESPARCIA, ET AL., defendants-appellees. Proceso R. Remollo for plaintiffs-appellants. Leonardo D. Mancao for defendants-appellees. DIZON, J.: Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners. After trial upon the issues thus joined, the lower court rendered judgment as follows: IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. No pronouncement as to the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land. There is no dispute as to the following facts: Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death the date of which does not clearly appear of record were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco. As a result of the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him, declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among other things, for and in consideration of the sum of P800.00 she sold the property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 which was in their possession the latter refused, thus giving rise to the filing of the corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9). Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, and who as such had declared the property in their name, on January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in their name of Transfer Certificate of Title No. T2141 (Exhs. 5 & 5-A). As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10). In connection with reservable property, the weight of opinion is that the reserve creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has held in connection with this matter that the reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279). The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any person entitled to the reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana. On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees the Esparcia spouses did not appeal therefrom. WHEREFORE, the appealed decision as above modified is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question. G.R. No. L-14603 April 29, 1961 RICARDO LARCERNA, ET AL., plaintiffs-appellants, vs. AGATONA PAURILLO VDA. DE CORCINO, defendant-appellee. JACOBA MARBEBE, intervenor-appellee. CONCEPCION, J.: Appeal from a decision of the Court of First Instance of Iloilo declaring that the parcels of land in litigation are property of intervenor Jacoba Marbebe. This action was instituted by Ricardo, Patrocinia, Patria, Faustino, Leonor, Ramona, Asuncion, Emiliana, Arsenio and Felipe, all surnamed Lacerna, for the recovery of three parcels of unregistered lands, situated in the municipality of Maasin, Iloilo, and more specifically described in the complaint, upon the ground that said lands belonged to the deceased Juan Marbebe, and that his cousins, plaintiffs herein, are his sole heirs. In her answer, defendant Agatona Vda. de Corcino alleged, inter alia, that Juan Marbebe might still be alive; that she held the disputed lands under a power of attorney executed by Juan Marbebe; and that, if he has died, she is entitled to succeed him in the same manner as plaintiffs herein, she being related to him in the same manner as plaintiffs are. With the court's permission, Jacoba Marbebe filed an answer in intervention alleging that she is a half sister of Juan Marbebe who died intestate, leaving neither ascendants nor descendants, and that, as his half sister, she is entitled, by succession, to the properties in dispute. After due trial, the court rendered judgment for the intervenor. Hence, this appeal by the plaintiffs.

The lower court found, and appellants do not question, that the lands described in the complaint belonged originally to Bonifacia Lacerna. Upon her death in 1932, they passed, by succession, to her only son, Juan Marbebe who was, subsequently, taken to Culion where he died intestate, single and without issue on February 21, 1943. The question for determination is: who shall succeed him? It appears that his mother, Bonifacia Lacerna, had a sister, Agatona Paurillo Vda. de Corcino, the defendant herein; that Catalino Lacerna died in 1950 and was survived by his children, plaintiffs Ricardo, Patrocinia and Patria, all surnamed Lacerna; and that Marcelo Lacerna who died in 1953, was survived by his children, the other plaintiffs herein, namely, Ramona, Faustino, Leonor, Asuncion Emiliano, Arsenio and Felipe, all surnamed Lacerna. Upon the other hand, intervenor Jacoba Marbebe is daughter, by first marriage, of Valentin Marbebe, husband of Bonifacia Lacerna and father of Juan Marbebe, who, accordingly, is a half brother of said intervenor. With this factual background, the issue is narrowed down to whether Jacoba Marbebe, as half sister of Juan Marbebe, on his father's side, is his sole heir, as held by His Honor, the Trial Judge, or whether plaintiffs herein, as first cousins of Juan Marbebe, on his mother side, have a better right to succeed him, to the exclusion of Jacoba Marbebe, as plaintiffs-appellants maintain. The latter's pretense is based upon the theory that, pursuant to Article 891 of the Civil Code of the Philippines, establishing what is known as "reserva troncal", the properties in dispute should pass to the heirs of the deceased within the third degree, who belong to the line from which said properties came, and that since the same were inherited by Juan Marbebe from his mother, they should go to his nearest relative within the third degree on the material line, to which plaintiffs belong, not to intervenor, Jacoba Marbebe, despite the greater proximity of her relationship to the deceased, for she belongs to the paternal line. Jacoba Marbebe contends, however, and the lower court held, that brothers and sisters exclude all other collateral relatives in the order of intestate succession, and that, as Juan Marbebe's half-sister, she has, accordingly, a better right than plaintiffs herein to inherit his properties. The main flaw in appellants' theory is that it assumes that said properties are subject to the "reserva troncal", which is not a fact, for Article 891 of the Civil Code of the Philippines, provides: The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Emphasis supplied.) This article applies only to properties inherited, under the conditions therein set forth, by an ascendant from a descendant, and this is not the case before us, for the lands in dispute were inherited by a descendant, Juan Marbebe, from an ascendant, his mother, Bonifacia Lacerna. Said legal provision is, therefore, not in point, and the transmission of the aforementioned lands, by inheritance, was properly determined by His Honor, the Trial Judge, in accordance with the order prescribed for intestate succession, particularly Articles 1003 to 1009 of the Civil Code of the Philippines, pursuant to which a sister, even if only a half-sister, in the absence of other sisters or brothers, or of children of brothers or sisters, excludes all other collateral relatives, regardless of whether or not the latter belong to the line from which the property of the deceased came. WHEREFORE, the decision appealed from is hereby affirmed, with costs against plaintiffs-appellants. It is so ordered. G.R. No. L-34395 May 19, 1981 BEATRIZ L. GONZALES, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DONA FILOMENA ROCES DE LEGARDA,respondents. AQUINO, J.:1wph1.t Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserve troncal, the properties which her mother Filomena Races inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on June 17, 1933. He was survived by his widow, Filomena Races, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito, Alejandro and Jose. On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda. Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Races Vda. de Legarda. Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: 1wph1.t (a) Savings deposit in the National City Bank of New York with a credit balance of P3,699.63. (b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life Assurance Company and the Manila Times. (c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds. 1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds; 1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio; 1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds; 1/7th of the lots and improvements at 181 San Rafael describe in TCT Nos. 50495 and 48161 of the Manila registry of deeds;

1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets); l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero): 2/21st of the property described in TCT No. 13458 of tile registry of deeds of T0ayabas. These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Races succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six children. Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads: 1wph1.t A mis hijos : Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria La Rosario' recientemente comprada a los hermanos Values Legarda. De los bienes de mi hija Filomena se deducira un tote de terreno que yo he 0donada a las Hijas de Jesus, en Guipit La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque ella esta construida sobre terreno de los hermanos Legarda Races. 1wph1.t (Sgd.) FILOMENA ROCES LEGARDA 6 Marzo 1953 During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the onethird share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz. Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Races Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzales, CA-G.R. No. 43480-R, July 30,1976. In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda. Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil. 1085). As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code. On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena] Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzales waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription. The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzales' petition for review is a closed matter. This Court in its resolution of December 16, 1971 denied respondents' motion to dismiss and gave due course to the petition for review. In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject to reserva troncal that is the only legal issue to be resolved in this appeal. The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this Court. The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Races Vda. de Legarda could dispose of them in his will in favor of her grandchildren to the exclusion of her six children. Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda? As will hereinafter be shown that is not a novel issue or a question of first impression. lt was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserve troncal, also calledlineal, familiar, extraordinaria o semi-troncal. Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserve troncal which together with the reserva viudal and reversion legal, was abolished by the Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy, and is incompatible with the socialization of ownership. The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reserves, insofar as they penalize legitimate relationship, is considered unjust and inequitable. However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserve troncal, a legal institution which, according to Manresa and Castan Tobenas has provoked questions and doubts that are difficult to resolve. Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads: 1wph1.t

ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese adquirido por titulo lucrative de otro ascendiente, o de un hermano, se halla obligado a reservas los que hubiere adquirido por ministerio de la ley en favor de los parientes que eaten dentro del tercer grade y pertenezcan a la linea de donde los bienes proceden ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. In reserve troncal (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came. So, three transmissions are involved: (I) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserve) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmissions of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserve. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872). The persons involved in reserve troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus (prepositus) who received the property, (3) the reservor (reservista) the other ascendant who obtained the property from the (prepositus) by operation of law and (4) the reserves (reservatario) who is within the third degree from theprepositus and who belongs to the (line o tronco) from which the property came and for whom the property should be reserved by the reservor. The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras or impeder que, por un azar de la vide personas extranas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065). An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that case, Pedro Sablan inherited two parcels of land from his father Victorians. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land. It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title. In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Maalac who owned the other one-half portion. Anacleto died intestate in 1942, survived by his second wife and their six children. lt was held that the said one-half portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and materna aunts of Juliana Maalac, who belonged to the line from which said one-half portion came (Aglibot vs. Maalac 114 Phil. 964). Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664;Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784. The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus(Cabardo vs. Villanueva. 44 Phil. 186, 190). In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. ln his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree. First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480). Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). Reserva troncal contemplates legitimate relationship. illegitimate relationship and relationship by affinity are excluded. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360). The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (Sienes vs. E Esparcia l l l Phil. 349, 353). The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349,

353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480: Director of Lands vs. Aguas, 63 Phil. 279.) The reservor's title has been compared with that of the vendee a retro in a pacta de retro sale or to a fideicomiso conditional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. lf there are no reservees at the time of the reservor's death, the transferee's title would become absolute. (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120). On the other hand, the reserves has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. lt would become absolute should the reservor predecease the reserves. The reserves cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reserves survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). 1wph1.t The reservatario receives the property as a conditional heir of the descendant (prepositus) said property merely reverting to the line of origin from which it had temporarily and accidentally stayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservists, the latter must be deemed to have enjoyed no more than a than interest in the reservable property. (J. J. B. L. Reyes in Cane vs. Director of Lands, 105 Phil. l5.) Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the (reservista) is alive (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295). This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista lt is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237). The latter, therefore, do not inherit from the reservista but from the descendant (prepositus) of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive thereservista. (Sanchez Roman, Vol. VI Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cane vs. Director of Lands, 105 Phil. l5.) In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda. So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in the second degree, her three daughters and three sons. As indicated at the outset, that issue is already res judicata or cosa juzgada. We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from theprepositus, not from the reservor. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed. We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled: 1wph1.t Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest (prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario (reserves). ln the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III death in 1891, his properties were inherited by his mother, Severina, who died in 1908. ln her will, she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband through their son, Apolonio III. The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina de Leon had inherited from Apolonio III which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes. Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court.

It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone. As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh of the properties. The other six sevenths portions were adjudicated to the other six reservees. Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of theFlorentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reserves to whom the reservable property should be awarded. The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case. It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda and who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein". That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the half-blood of the prepositus. In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree. This Court noted that, while it is true that by giving the reservable property to only one reserves it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property (pp. 894-5). Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of Article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda. It should be repeated that the reservees do not inherit from the reservor but from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). The trial court said that the disputed properties lost their reservable character due to the non-existence of third-degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree relatives who pertain to both" the Legarda and Races lines. That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4). WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents. SO ORDERED. G.R. No. L-28032 September 24, 1986 FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO PAPA, plaintiffs-appellees, vs. DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO CAMACHO, defendants-appellants. NARVASA, J.: This case, which involves the application of Article 891 of the Civil Code on reserva troncal, was submitted for judgment in the lower court by all the parties on the following "Stipulation of Facts and Partial Compromise": 1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the plaintiffs, Francisco Tioco de Papa, Manuel Tioco and Nicolas Tioco, are legitimate relatives, plaintiffs being said defendant's grandaunt and granduncles. 2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho have as a common ancestor the late Balbino Tioco (who had a sister by the name of Romana Tioco), father of plaintiffs and great grandfather of defendant. The family relationship of the parties is as shown in the chart attached hereto as Annex 'A' and made an integral part of this stipulation. 3. They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-l', and 'B-2'. 4. They stipulate that Toribia Tioco died intestate in l9l5, survived by her husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D, Tongko-Camacho) and leaving the aforementioned four (4) parcels of land as the inheritance of her said two children in equal pro-indiviso shares. 5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his legitimate children by his wife Marciana Felix (among them plaintiffs) and legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition of his estate, three (3) parcels of

land now covered by Transfer Certificates of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which are attached hereto as Annexes 'C' and 'C-l', were adjudicated as the inheritance of the late Toribia Tioco, but as she had predeceased her father, Balbino Tioco, the said three (3) parcels of land devolved upon her two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso shares. 6. They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of land above-mentioned to his father, Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal which was subsequently annotated on the Transfer Certificates of Title Annexes 'B', 'Bl', 'B-2', 'C' and 'C-l'. 7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in the parcels of land abovementioned were inherited by her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo Tongko. 8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived his only legitimate descendant, defendant Dalisay D. Tongko-Camacho. 9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-Tongko. 10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the other half of the said seven (7) parcels of land abovementioned by virtue of the reserva troncal imposed thereon upon the death of Faustino Dizon and under the laws on intestate succession; but the plaintiffs, also upon legal advice, oppose her said claim because they claim three-fourths (3/4) of the one-half pro-indiviso interest in said parcel of land, which interest was inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the said parcels of land, by virtue of their being also third degree relatives of Faustino Dizon. 11. The parties hereby agree to submit for judicial determination in this case the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three eights (3/8) of said seven (7) parcels of land, and, therefore, to three-eights (3/8) of the rentals collected and to be collected by defendant Dalisay P. Tongko Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. 12. In view of the fact that the parties are close blood relatives and have acted upon legal advice in pursuing their respective claims, and in order to restore and preserve harmony in their family relations, they hereby waive all their claims against each other for damages (other than legal interest on plaintiffs' sore in the rentals which this Honorable Court may deem proper to award), attorney's fees and expenses of litigation which shall be borne by the respective parties. 1 On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco, as well as the defendant Dalisay Tongko-Camacho, entitled, as reservatarios, to one-half of the seven parcels of land in dispute, in equal proportions, rendering judgment as follows: ... . Resolving, therefore, the legal question submitted by the parties, the court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are entitled to three-fourths (3/4) of one-half (1/2) pro-indiviso shares or three-eights (3/8) of the seven (7) parcels of land involved in this action. Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals collected and to be collected by the defendant Dalisay D. Tioco-Camacho from the tenants of the said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived all their claims against each other for damages including attorney's fees and expenses of litigation other than the legal interests on plaintiffs' share in the rentals, the court renders judgment adjudging the plaintiffs entitled to three-eights (3/8) of the seven (7) parcels of land described in Transfer Certificate of Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is hereby ordered to make an accounting of all rents received by her on the properties involved in this action for the purpose of determining the legal interests which should be paid to the plaintiffs on their shares in the rentals of the property in question. SO ORDERED. 2 Not satisfied, the defendant appealed to this Court. The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower Court, all relatives of the praepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads: Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (811), or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession. That question has already been answered in Padura vs. Baldovino, 3 where the reservatario was survived by eleven nephews and nieces of thepraepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code. Said the Court: The issue in this appeal may be formulated as follows: In a case of reserva troncal, where the onlyreservatarios (reservees) surviving the reservista, and belonging to the fine of origin, are nephews of the descendant (prepositus), but some are nephews of the half blood and the others are nephews of the whole blood, should the reserved properties be apportioned among them equally, or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood? xxx xxx xxx

The case is one of first impression and has divided the Spanish commentators on the subject. After mature reflection, we have concluded that the position of the appellants is correct. The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista). xxx xxx xxx The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. But from this time on, there is no further occasion for its application. In the relations between one reservatario and another of the same degree there is no call for applying Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree (Florentino vs. Florentino, 40 Phil. 489-490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905). And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews (Florentino vs. Florentino, supra). Following the order prescribed by law in legitimate succession when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatarios over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. ... . (Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) See also Nieva and Alcala vs. Alcala and de Ocampo, 41 Phil. 915) Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should be likewise operative. In other words, the reserva troncal merely determines the group of relatives reservatarios to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its application should be limited to what is strictly needed to accomplish the purpose of the law. As expressed by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250): ... creandose un verdadero estado excepcional del derecho, no debe ampliarse, sino mas bien restringirse, el alcance del precepto, manteniendo la excepcion mientras fuere necesaria y estuviese realmente contenida en la disposicion, y aplicando las reglas generales y fundamentales del Codigo en materia de sucesi6n, en aquehos extremes no resueltos de un modo expreso, y que quedan fuera de la propia esfera de accion de la reserva que se crea. The restrictive interpretation is the more imperative in view of the new Civil Code's hostility to successional reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the Code of 1889 (Art. 812 and 968-980). Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. To this effect is Abellana vs. Ferraris 4 where Arts. 1001, 1004, 1005 and 1009 of the Civil Code were cited and applied: Nevertheless, the trial court was correct when it held that, in case of intestacy nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the Philippines, that provide as follows: Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitle to one-half of the inheritance and the brothers and sisters or their children to the other half. Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. Art. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. Art. 1009. Should there be neither brothers nor sisters, nor children of brothers and sisters, the other collateral relatives shall succeed to the estate. Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: Art. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce shall succeed to the entire estate of the deceased. Art. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood.

It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals. xxx xxx xxx We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. ... This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property, thereservatarios do not inherit from the reservista, but from the descendant praepositus: ... . It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of it by will, as long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive thereservista. (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310) ... . To the same effect is Cano vs, Director of Lands 5, where it was ruled that intestacy proceedings to determine the right of a reservatario are not necessary where the final decree of the land court ordering issuance of title in the name of the reservista over property subject to reserva troncal Identifies thereservatario and there are no other claimants to the latter's rights as such: The contention that an intestacy proceeding is still necessary rests upon the assumption that thereservatario win succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the reservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there beingreservatarios that survive the reservista, the matter must be deemed to have enjoyed no more than a life interest in the reservable property. It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus (the appellee in this case) becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of thereservista, and does not even answer for the debts of the latter. ... . Had the reversionary property passed directly from the praepositus, there is no doubt that the plaintiffs-appellees would have been excluded by the defendant-appellant under the rules of intestate succession. There is no reason why a different result should obtain simply because "the transmission of the property was delayed by the interregnum of the reserva;" 6 i.e., the property took a "detour" through an ascendant-thereby giving rise to the reservation before its transmission to the reservatario. Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees. WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and the complaint is dismissed, with costs against the plaintiffs-appellants. SO ORDERED. G.R. No. L-29192 February 22, 1971 GERTRUDES DE LOS SANTOS, plaintiff-appellee, vs. MAXIMO DE LA CRUZ, defendant-appellant. Benjamin Pineda for plaintiff-appellee. Ceasar R. Monteclaros for defendant-appellant. VILLAMOR, J.: Direct appeal to this Court on questions of law from the judgment of the Court of First Instance of Rizal, Branch IX, in its Civil Case No. Q-8792. From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others, that on August 24, 1963, she and several co-heirs, including the defendant, executed an extrajudicial partition agreement (a copy of which was attached to the complaint) over a certain portion of land with an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the defendant, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3) lots; that in spite of demands by the plaintiff, by the co-heirs, and by the residents of the subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under the extrajudicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs. In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set up the affirmative defenses that the plaintiff had no cause of action against him because the said agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be ordered to pay him the sum of P2,500.00. On motion of the defendant, the court below entered an order on July 19, 1965, declaring the plaintiff in default for not having answered the counterclaim. On July 6, 1966, the case was submitted for decision on the following stipulation of facts:

1. That the parties admit the existence and execution of the "Extra-Judicial Partition Agreement" dated August 24, 1963, which was marked as Exhibit "A" for the plaintiff, and Exhibit "I" for the defendant, which partition agreement was marked as Annex "A" in the complaint; 2. That the parties agree that the original purpose of the above-mentioned Extra-Judicial Partition Agreement was for the distribution of the in question for the heirs of Pelagia de la Cruz; however the parties further agree that several lots in the said land have been sold by some of the co-heirs, and there are houses several houses constructed therein and residents therein; 3. That the parties agree that the defendant is the appointed Administrator and In-charge of the development and subdivision of the land in question, as provided for in the aforementioned extrajudicial partition agreement; 4. That parties agree that Lots 1, 2 and 3 as described on page 3, 3rd paragraph to the last of said partition agreement have been sold by the defendant herein; and parties further agree that there are no properly constructed roads, nor proper light and water facilities; 5. That the parties agree that the defendant is the nephew of the deceased Pelagia de la Cruz aforementioned, who was the owner and predecessor in interest of the land which was the subject matter of the extra-judicial partition agreement; 6. That the parties agree that the plaintiff is the grandniece of the said Pelagia de la Cruz; 7. That Pelagia de la Cruz died intestate and without issue on October 16, 1962, as evidenced by a death certificate, which is marked as Exhibit "2" for tap defendant; and 8. That Marciana de la Cruz is the mother of the plaintiff and the niece of the said Pelagia de la Cruz, and that the said Marciana de la Cruz died on September 22, 1935, as evidenced by Exhibit "3" for the defendant. In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose), and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees, and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for New Trial" but the same was denied. Hence, this appeal. The seven (7) errors assigned by defendant-appellant in his brief boil down to the following: 1. The court a quo erred in not holding that the extrajudicial partition agreement is null and void with respect to plaintiff-appellee, and, consequently, that plaintiff-appellee has no cause of action against defendant-appellant. 2. The court a quo erred in holding that defendant-appellant is estopped from questioning plaintiff-appellee's right to have the agreement enforced. 3. The court a quo erred in ordering defendant-appellant to pay actual damages to plaintiff-appellee, and, on the other hand, in not granting the relief prayed for by defendant-appellant in his counterclaim. We shall discuss seriatim these errors as thus condensed. 1. In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962; that defendant-appellant is a nephew of the said decedent; that plaintiff-appellee is a grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de la Cruz; that plaintiffappellee's mother died on September 22, 1935, thus predeceasing Pelagia de la Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate among the heirs of Pelagia de la Cruz. The pivotal question is whether, in the premises, plaintiff-appellee is a heir of the decedent. We are convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could not inherit from the latter by right of representation. ART. 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. Much less could plaintiff-appellee inherit in her own right. ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. ... . Applying these two (2) provisions, this Court, in Linart y Pavia vs. Ugarte y Iturralde, 5 Phil., 176 (1905), said, ... [I]n an intestate succession a grandniece of the deceased and not participate with a niece in the inheritance, because the latter being a nearer relative, the more distant grandniece is excluded. In the collateral line the right of representation does not obtain beyond sons and daughters of the brothers and sisters, which would have been the case if Pablo Linart, the father of the plaintiff, had survived his deceased uncle. In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces, one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece is excluded by law from the inheritance. But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition agreement insofar as her right to bring the present action is concerned? They did not confer upon her the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation of her deceased mother. The pertinent portion of the agreement is herein quoted, thus: NOW, THEREFORE, we ... and Diego de los Santos, married to Anastasia de la Cruz; Mariano delos Santos married to Andrea Ramoy; Gertrudes delos Santos, married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera delos Santos, married to Narciso Ramota; all in representation of our mother, MARCIANA DELA CRUZ, ..., do hereby by these presents, mutually, voluntarily and amicably agree among ourselves to equitably divide the property left by the deceased PELAGIA DELA CRUZ, and adjudicate unto ourselves definite and independent portions of the estate in the following manner ... .

It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such a heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code, which reads: ART. 1105. A partition which includes a person believed to be a heir, but who is not, shall be void only with respect to such person. Partition of property affected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the agreement the right to have its terms enforced. 2. The extrajudicial partition agreement being void with respect to plaintiff-appellee, she may not be heard to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17 Am. Jur. 605), or on acts which are prohibited by law or are against public policy (Baltazar vs. Lingayen Gulf Electric Power Co., et al., G.R. Nos. 16236-38, June 30, 1965 [14 SCRA 5221). InRamiro vs. Grao, et al., 54 Phil., 744 (1930), this Court held: No estoppel arises where the representation or conduct the party sought to be estopped is due to ignorance founded upon a mistake. And which there is authority to the contrary, the weight of authority is that the acts and declarations of a party based upon an innocent mistake as to his legal rights will not estop him to assert the same, especially where every fact known to the party sought to be estopped is equally well known to the party setting up the estoppel. (21 C.J., 1125, 1126.) And in Capili, et al. vs. Court of Appeals, et al., G.R. No. L-18148, February 28, 1963 (7 SCRA 367), this Court said: Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be apprised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no estoppel. ... . 3. The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article 2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided on a stipulation of facts and no evidence was adduced before the trial court. We now come to defendant-appellant's counterclaim, in which he alleged that plaintiff-appelee sold her share to a certain person for the price of P10,000.00, and claims that he is entitled to one-fourth (1/4) of the proceeds by right of reversion. It will be noted that plaintiff-appellee had been declared in default on defendant-appellant's counterclaim; but the latter did not present any evidence to prove the material allegation therein more specifically, the alleged sale of the former's share for the sum of P10,000.00. That no such evidence had been adduced is understandable, for the parties expressly submitted the case for the resolution of the court upon their stipulation of facts which, unfortunately, did not make any mention of the alleged sale; and neither had defendant made any offer or move to introduce the necessary evidence to that effect for the consideration and evaluation by the trial court. Defendant-appellant contends, however, that in view of plaintiff-appellee's having been declared in default, the latter must be deemed to have admitted all the allegations in his counterclaim, so that the court a quo should have granted the relief prayed for by him. We find no merit in this contention. Section 1, Rule 18 of the Revised Rules of Court, reads: SECTION 1. Judgment by default.if the defendant fails to answer within the time specified in these rules, the court shall, upon motion of the plaintiff and proof of such failure, declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff's evidence and render judgment granting him such relief as the complaint and the facts proven may warrant. This provision applies where no answer is made to a counterclaim, crossclaim or third-party complaint within the period provided in this rule. The abovequoted rule was taken from Sections 128 and 129 of the Code of Civil Procedure. In Macondray & Co. vs. Eustaquio, 64 Phil., 446 (1937), this Court said: Under section 128 of our Code of Civil Procedure, the judgment by default against a defendant who has neither appeared nor filed his answer does not imply a waiver of rights except that of being heard and of presenting evidence in his favor. It does not imply admission by the defendant of the facts and causes of action of the plaintiff, because the codal section requires the latter to adduce his evidence in support of his allegations as an indispensable condition before final judgment could be given in his favor. Nor could it be interpreted as an admission by the defendant that the plaintiff's causes of action find support in the law or that the latter is entitled to the relief prayed for. ... . Nevertheless, the basic fact appears in the stipulation submitted by the parties that said plaintiff-appellee admitted having received a portion of the estate by virtue of the extrajudicial partition agreement dated August 24, 1963, to wit: (9). Lot 9, (LRC) Psd-29561, containing an area of 1,691 sq. m. as described in the Technical Description to be adjudicated to Diego delos Santos, married to Anastacia dela Cruz; Mariano delos Santos, married to Regina Baluyot; Hilario delos Santos, married to Andrea Ramoy; Gertrudes delos Santos, married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera delos Santos, married to Narciso Ramota, in co-ownership, share and share alike. Such being the case, defendant-appellant is apparently correct in his contention that the lower court erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to him his corresponding share of said portion received by appellee under the void partition. Remote relatives or unrelated person who unduly received and took possession of the property of a deceased person without any right, by virtue of a null and void partition, must restore it to the legitimate successor in the inheritance (De Torres vs. De Torres, et al.,supra). Of course, if such share has already been disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been supported by evidence which appellant should have presented in the lower court but did not. IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is hereby reversed and set aside; the defendant-appellant is absolved from any ability to and in favor of plaintiff-appellee; and, on appellant's counterclaim, appellee is hereby sentenced to restore or reconvey

to him his corresponding share of the property she has received under the extrajudicial partition hereinbefore mentioned if the same has not already been disposed of as alleged. Costs in both instance against plaintiff-appellee. G.R. No. L-19382 August 31, 1965 IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELODIA FERRARIS. FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs. GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERARIS DE VILLEGAS, JUANITO FERRARIS and CONCHITA FERRARIS, oppositors-appellees. Mateo C. Bacalso and C. Kintanar for petitioner-appellant. Gaudioso Sosmea and C. Tomakin for oppositors-appellees. REYES, J.B.L., J.: This is a pauper's appeal, directly brought to this Court on points of law, from a resolution, dated September 20, 1961, excluding petitionerappellant herein, Filomena Abellana de Bacayo, as heir in the summary settlement of the estate of Melodia Ferraris, Special Proceeding No. 2177R of the Court of First Instance of Cebu, Third Branch, as well as from the order, dated October 16, 1961, denying a motion to reconsider said resolution. The facts of this case are not disputed by the parties. Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22, 1960 of the petition for the summary settlement of her estate, she has not been heard of and her whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was known to be alive, she was declared presumptively dead for purposes of opening her succession and distributing her estate among her heirs. Melodia Ferraris left properties in Cebu City, consisting of one-third (1/3) share in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special Proceeding No. 13-V of the same court. The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives, namely, Filomena Abellana de Bacayo, an aunt and half-sister of decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and nephew, who were the children of Melodia's only brother of full blood, Arturo Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris. The following diagram will help illustrate the degree of relationship of the contending parties to said Melodia Ferraris: Note: Picture The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit an aunt and the children of a brother who predeceased him or her? Otherwise, will the aunt concur with the children of the decedent's brother in the inheritance or will the former be excluded by the latter? The trial court ruled that the oppositors-appellees, as children of the only predeceased brother of the decedent, exclude the aunt (petitionerappellant) of the same decedent reasoning out that the former are nearer in degree (two degrees) than the latter since nieces and nephews succeed by right of representation, while petitioner-appellant is three degrees distant from the decedent, and that other collateral relatives are excluded by brothers or sisters or children of brothers or sisters of the decedent in accordance with article 1009 of the New Civil Code. Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or equal degree of relationship as the oppositors appellees, three degrees removed from the decedent; and that under article 975 of the New Civil Code no right of representation could take place when the nieces and nephew of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather the former succeed in their own right. We agree with appellants that as an aunt of the deceased she is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by right of representation (i.e., per stripes) unless concurring with brothers or sisters of the deceased, as provided expressly by Article 975: ART. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujusexclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that provided as follows: ART. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. ART. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. ART. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stripes. ART. 1009. Should there be neither brothers nor sister nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: ART. 952. In the absence of brother, or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce, shall succeed to the entire estate of the deceased. ART. 954. Should there be neither brothers or sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased.

The latter shall succeed without distinction of lines or preference among them by reason of the whole blood. It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis-a-vis the other collaterals. Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as declaring that Article 1009 does not establish a rule of preference. Which is true as to "other collaterals," since preference among them is according to their proximity to the decedent, as established by Article 962, paragraph 1. ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On the contrary, in the first paragraph of his commentaries to Article 1009 (Vol II, p. 439) (which counsel for appellants had unethically omitted to quote), Tolentino expressly states: Other collaterals. The last of the relatives of the decedent to succeed in intestate succession are the collaterals other than brothers or sisters or children of brothers or sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can safely say there is hardly any affection to merit the succession of collaterals. Under the law, therefore, relatives beyond the fifth degree are no longer considered as relatives, for successional purposes. Article 1009 does not state any order of preference. However, this article should be understood in connection with the general rule that the nearest relatives exclude the farther. Collaterals of the same degree inherit in equal parts, there being no right of representation. They succeed without distinction of lines or preference among them on account of the whole blood relationship. (Emphasis supplied) We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. The decision appealed from, in so far as it conforms to this rule, is hereby affirmed. No costs. G.R. No. L-20946 September 23, 1966 EUGENIO C. DEL PRADO, plaintiff and appellant, vs. AUREA S. SANTOS, legal guardian of the minor JESUS SANTOS DEL PRADO, defendant and appellee. L. F. Gabinete and Marcelino M. Timbang for plaintiff and appellant. Jose W. Diokno for defendant and appellee. MAKALINTAL, J.: In the Court of First Instance of Rizal, Eugenio C. del Prado filed a complaint to annul a deed executed by Aurea S. Santos, married to Deogracias Demetria, adjudicating to the minor Jesus Santos del Prado, her son allegedly by plaintiff's deceased brother Anastacio C. del Prado, a parcel of land left by the latter. Plaintiff alleged that he was thus deprived of his rightful share in the estate of his brother. Annulment of the transfer certificate of title issued to the minor by virtue of said deed of adjudication was also prayed for. In defendant's answer she averred that her son Jesus Santos del Prado, being an acknowledged natural child of the deceased, was entitled to the property left by the latter; and on the ground that the action had been maliciously filed, she interposed a counterclaim for damages. On July 3, 1959 the parties entered into the following stipulation of facts: . Come now the parties in the above entitled case, assisted by their respective counsel, and to the Honorable Court respectfully stated that, for purposes of this action only, and without in any way constituting an admission for any other purpose and with the understanding that the same may not be used against them in any other proceedings, as provided in Rule 23, Section 3 of the Rules of Court, the parties admit that the following facts are true and may be considered by the Court as proved without the need of the introduction of any evidence thereon: 1. Anastacio C. del Prado, died intestate in the City of Manila on August 11, 1958; at the time of his death, Anastacio C. del Prado was single; 2. Plaintiff Eugenio C. del Prado is a legitimate brother of the late Anastacio C. del Prado; 3. Defendant Aurea S. Santos was legally married to Deogracias Demetria in 1945, but has been in fact separated from him; 4. The deceased Anastacio C. del Prado and defendant Aurea S. Santos cohabited with each other without the benefit of matrimony; as a result of that cohabitation, the late Anastacio C. del Prado and defendant Aurea S. Santos had one son the minor Jesus S. del Prado who was born on December 19, 1957, and whom Anastacio C. del Prado admitted to be his son in the latter's birth certificate; 5. After the death of Anastacio C. del Prado his estate consisting, among others, of a parcel of land situated at Caloocan, Rizal, covered by Transfer Certificate of Title No. 471848 of the Register of Deeds of Rizal in the name of Anastacio C. del Prado with an assessed value of P750.00, was adjudicated to the minor Jesus del Prado. True copy of the affidavit of adjudication executed by defendant Aurea S. Santos as mother and natural guardian of the said minor is attached as Annex "A" of the complaint, which the parties agree to mark as Exhibit "A"; 6. By reason of the aforesaid adjudication the Register of Deeds of Rizal cancelled Transfer Certificate of Title No. 47148 and issued Transfer Certificate of Title No. 61671 in the name of the minor Jesus S. del Prado. ISSUE The foregoing facts raises one principal issue of law, namely: "who has a better right to the aforesaid parcel of land left by the late Anastacio C. del Prado, plaintiff or the minor Jesus S. del Prado?"1awphl.nt The parties hereby agree to present evidence to substantiate their sides on the issue herein agreed upon. Upon the foregoing stipulation, the parties submitted the case without further evidence. The lower court dismissed the complaint. Plaintiff elevated the matter to the Court of Appeals, which certified the case to this Court, the questions involved being purely legal.1awphl.nt

The lower court ruled and this ruling is assigned as error that since the deceased Anastacio C. del Prado "left no legitimate descendants or ascendants the minor Jesus S. del Prado shall succeed to the entire estate left by his supposed father to the exclusion of the plaintiff who is only a collateral relative." Appellant contends: Even if said minor is the illegitimate son of the deceased, the latter never recognized him as such, no showing having been made that it was at the instance or with the consent of the deceased that said minor was entered as his son in the civil registry or that the birth certificate where the recognition appears authentic. Appellant's position is untenable. The facts stipulated by him and by appellee are clear: "the deceased Anastacio C. del Prado and defendant Aurea S. Santos cohabited with each other without the benefit of matrimony; as a result of that cohabitation, the late Anastacio C. del Prado and defendant Aurea S. Santos had one son the minor Jesus S. del Prado who was born on December 19, 1957, and whom Anastacio C. del Prado admitted to be his son in the latter's birth certificate." Since Anastacio C. del Prado died in 1958 the new Civil Code applies (Article 2263). Illegitimate children other than natural are entitled to successional rights (Article 287). Where, as in this case, the deceased died intestate, without legitimate descendants or ascendants, then his illegitimate child shall succeed to his entire estate (Article 988), to the exclusion of appellant who is only a collateral relative. The decision appealed is affirmed, with costs against appellant. G.R. No. L-19996 April 30, 1965 WENCESLA CACHO, petitioner-appellee, vs. JOHN G. UDAN, and RUSTICO G. UDAN, oppositors-appellants. Gregorio Dolojan for petitioner-appellee. Benjamin A. G. Vega and Abad Santos and Pablo for oppositors-appellants. REYES, J.B.L., J.: Direct appeal, on questions of law, from an order of the Court of First Instance of Zambales (Hon. Lucas Lacson presiding), issued on 20 February 1962, in its Special Proceeding No. 2230, wherein the court disallowed the opposition of John G. Udan and Rustico G. Udan to the probate of the alleged will of their sister Silvina Udan. From the records it can be gleaned that on 13 December 1959 one Silvina G. Udan, single, and a resident of San Marcelino, Zambales, died leaving a purported will naming her son, Francisco G. Udan, and one Wencesla Cacho, as her sole heirs, share and share alike. Wencesla Cacho, filed a petition to probate said Will in the Court of First Instance of Zambales on 14 January 1960 (RA. pp. 1-16). On 15 February 1960 Rustico G. Udan, legitimate brother of the testatrix, filed an opposition to the probate (RA. pp. 16-18). On 16 February 1960 Atty. Guillermo Pablo, Jr., filed his Appearance and Urgent Motion for Postponement for and in behalf of his client Francisco G. Udan, the appointed heir in the Will (RA. pp. 18-22). On 9 June 1960 Francisco G. Udan, through counsel, filed his opposition to the probate of this will (RA. pp. 33-35). On 15 September 1960 oppositor Rustico G. Udan, through counsel, verbally moved to withdraw his opposition, dated 13 February 1960, due to the appearance of Francisco G. Udan, the named heir in the will and said opposition was ordered withdrawn (RA. pp. 55-56). After one witness, the Notary Public who made and notarize the will, had testified in court, oppositor Francisco G. Udan died on June 1961 in San Marcelino, Zambales, Philippines (RA. pp. 63-66). After the death of Francisco G. Udan, John G. Udan and Rustico G. Udan, both legitimate brothers of the testatrix Silvina G. Udan, filed their respective oppositions on the ground that the will was not attested and executed as required by law, that the testatrix was incapacitated to execute it; and that it was procured by fraud or undue influence (RA. pp. 63-66; 67-71). On 20 January 1962 proponent-appellee, through counsel, filed a Motion to Dismiss Oppositions filed by the Oppositors (RA. pp. 73-80), and on 20 February 1962 the Honorable Court of First Instance of Zambales issued an Order disallowing these two oppositions for lack of interest in the estate and directing the Fiscal to study the advisability of filing escheat proceedings (RA. pp. 97-99). On 26 and 30 March 1962 both oppositors filed their Motions for Reconsideration, through their respective counsels, and these motions were both denied by the lower court on 25 April 1962 (RA. pp. 99-122; pp. 131-132). On 7 May 1962 oppositors filed their joint Notice of Appeal (RA. pp. 132-135). The first issue tendered by appellants is whether the oppositor brothers, John and Rustico Udan, may claim to be heirs intestate of their legitimate sister, the late Silvina Udan. We find that the court below correctly held that they were not, for at the time of her death Silvina's illegitimate son, Francisco Udan, was her heir intestate, to the exclusion of her brothers. This is clear from Articles 988 and 1003 of the governing Civil Code of the Philippines, in force at the time of the death of the testatrix: ART. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. These legal provisions decree that collateral relatives of one who died intestate inherit only in the absence of descendants, ascendants, and illegitimate children. Albeit the brothers and sisters can concur with the widow or widower under Article 1101, they do, not concur, but are excluded by the surviving children, legitimate or illegitimate (Art. 1003). That Francisco Udan was the illegitimate son of the late Silvina is not denied by the oppositor; and he is so acknowledged to be in the testament, where said Francisco is termed "son" by the testatrix. As the latter was admittedly single, the son must be necessarily illegitimate (presumptively natural under Article 277). The trial court, therefore, committed no error in holding that John and Rustico Udan had no standing to oppose the probate of the will. For if the will is ultimately probated John and Rustico are excluded by its terms from participation in the estate; and if probate be denied, both oppositorsappellants will be excluded by the illegitimate son, Francisco Udan, as sole intestate heir, by operation of law. The death of Francisco two years after his mother's demise does not improve the situation of appellants. The rights acquired by the former are only transmitted by his death to his own heirs at law not to the appellants, who are legitimate brothers of his mother, for the reason that, as correctly decided by the court below, the legitimate relatives of the mother cannot succeed her illegitimate child. This is clear from Article 992 of the Civil Code. ART. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

For the oppositors-appellants it is argued that while Francisco Udan did survive his mother, and acquired the rights to the succession from the moment of her death (Art. 777, Civ. Code), still he did not acquire the inheritance until he accepted it. This argument fails to take into account that the Code presumes acceptance of an inheritance if the latter is not repudiated in due time (Civ. Code, Art. 1057, par. 2), and that repudiation, to be valid, must appear in a public or authentic instrument, or petition to the court. There is no document or pleading in the records showing repudiation of the inheritance by Francisco Udan. The latter's own opposition (RA. p. 61) to the probate of the alleged will is perfectly compatible with the intention to exclude the proponent Cacho as testamentary coheir, and to claim the entire inheritance as heir ab intestato. Finally, it is urged that as probate is only concerned with the due execution of a testament, any ruling on the successional rights of oppositorsappellants is at present premature. Inquiry into the hereditary rights of the appellants is not premature, if the purpose is to determine whether their opposition should be excluded in order to simplify and accelerate the proceedings. If, as already shown, appellants cannot gain any hereditary interest in the estate whether the will is probated or not, their intervention would merely result in unnecessary complication. It may not be amiss to note, however, that the hearing on the probate must still proceed to ascertain the rights of the proponent Cacho as testamentary heir. It is urged for the applicant that no opposition has been registered against his petition on the issues above-discussed. Absence of opposition, however, does not preclude the scanning of the whole record by the appellate court, with a view to preventing the conferment of citizenship to persons not fully qualified therefor (Lee Ng Len vs. Republic, G.R. No. L-20151, March 31, 1965). The applicant's complaint of unfairness could have some weight if the objections on appeal had been on points not previously passed upon. But the deficiencies here in question are not new but well-known, having been ruled upon repeatedly by this Court, and we see no excuse for failing to take them into account.1wph1.t WHEREFORE, the order under appeal is affirmed, without prejudice to further proceedings in the case, conformably to this opinion. Costs against appellants John G. Udan and Rustico G. Udan. G.R. No. L-44051 June 27, 1985 EUFRACIA VDA. DE CRISOLOGO, EUSTAQUIO, VICENTE, ESTELA, CAMILA, MAXIMO, LITO, FELIX, OMAN, CRISPINA and REY, all surnamed RAMIREZ, TRIUNFO, RUPERTA and CARMEN, all surnamed PASSILAN, and DOMINGO ROQUE, QUIRINO, MANUELA and ANITA, all surnamed LABOG, petitioners, vs. THE COURT OF APPEALS, HON. ANDRES PLAN and BERNARDO MALLILLIN, respondents. Melanio T. Singson for petitioners. Juan Durian for private respondent. GUTIERREZ, JR., J.: This is a petition to review on certiorari the decision of the Court of Appeals now the Intermediate Appellate Court which dismissed the petitioners' special civil action for mandamus for lack of appellate jurisdiction over it. In said special civil action, the petitioners prayed that the trial court be ordered to approve their record on appeal which was dismissed for having been filed out of time. The petitioners filed an action against the private respondent for ownership, annulment of sale, and delivery of possession of various properties, with writ of preliminary injunction and damages. Claiming to be legal heirs of the vendor, they sought the annulment of four deeds of sale covering seventeen (17) parcels of land and a residential house executed by Lutgarda Capiao in favor of respondent Mallillin. The latter filed a motion to dismiss which was however denied for not being indubitable at that stage of the proceedings. The private respondent, therefore, filed his answer. After termination of the pre-trial proceedings and during the trial on the merits, the parish priest of the Roman Catholic Church, Rev. Father Roque N. Fidol, testified on the witness stand. He was duly cross-examined by Atty. Aguirre, counsel for the petitioners. The private respondent filed a motion for summary judgment on the following grounds: 1. THAT LEOGUARDA(ALIAS LUTGARDA)WAS THE ILLEGITIMATE DAUGHTER OF THE LATE JULIA CAPIAO CONSEQUENTLY PLAINTIFFS ARE COMPLETE STRANGERS TO HER LEOGUARDA AND THEY (PLAINTIFFS) ARE NOT THE REAL PARTIES IN INTEREST AND HAVE NO CAUSE OF ACTION, MUCH LESS PERSONALITY TO MAINTAIN THE PRESENT PROCEEDINGS; and 2. THAT INSEPARABLY CONNECTED WITH THE FACT THAT PLAINTIFFS ARE STRANGERS TO THE LATE LEOGUARDA CAPIAO AND HAVE NO CAUSE OF ACTION OR PERSONALITY TO PURSUE THE PRESENT PROCEEDING, IT FOLLOWS AS A COROLLARY THAT DEFENDANT IS ENTITLED TO A SUMMARY JUDGMENT AS A MATTER OF LAW IN ACCORDANCE WITH HIS PRAYER FOR RELIEF ISSUE AS TO MATERIAL FACT. The petitioners filed a motion to admit their amended complaint. The private respondent filed his amended answer with additional exhibits. On the date set by the court for another pre-trial conference, the private respondent filed a motion reiterating his previous motion for summary judgment. After the petitioners filed an opposition to the motion and the respondent had filed his reply, the respondent judge rendered a summary judgment dismissing the amended complaint. The judgment was based on the following findings: The original complaint and the amended complaint filed by the plaintiffs alleges in quintessence or in substance the following: 'That Julia Capiao who maintained extra-marital relations with one Victoriano Taccad, begot with him one child and/or forced heir, named Lutgarda (Leogarda) Capiao who was married to Raymundo Zipagan both of whom died at Cauayan, Isabela in 1970 and 1964, respectively, without any children and/or immediate forced heirs' (paragraph 5 of the amended complaint); That Lutgarda (Leogarda) Capiao having died on November 11, 1970 at Cauayan, Isabela, without any will inestate succession took place and the herein plaintiffs, as relatives within the fifth civil degree to her (Lutgarda [Leogarda] Capiao were consequently instituted as Lutgarda's legal heirs and were legally entitled to inherit all the properties which were hers by virtue of the extrajudicial partition, Annex "B", (paragraph 15, amended complaint). The motion to dismiss, particularly the motion is reiteration of defendant's previous motion for summary judgment, contains as Page 2-A diagram of the family tree of the plaintiffs and the defendant, showing that their common ancestor was Pablo Capiao ... As shown by the family, tree or diagram, Julia Capiao deceased. who maintained extra-marital relations with one Victoriano Taccad had one issue, the deceased Leogarda and/or Lutgarda Capiao married to Raymundo Zipagan both having died without any children and/or immediate forced heir ...

The source of these properties in question deceased Lutgarda Leogarda is undoubtedly an illegitimate child. In fact, her surname is Capiao and not Taccad, retaining the surname or family name of her mother Julia Capiao Article 992 of the Civil Code, cited by the movant, the defendant, provides: Art. 992. Illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.' xxx xxx xxx Going back to the diagram, putting in black and white the family tree of the parties graphically showing their relationship with the late Lutgarda Capiao the source of the properties in question and their relationship with one another, the question that arises ... is the following: THE RELATIVES OF JULIA CAPIAO, NAMELY: THE PLAINTIFFS IN THIS CASE, CAN THEY INHERIT FROM LUTGARDA CAPIAO, THE ORIGINAL OWNER OF THE PROPERTIES IN QUESTION? Clearly, they can not because the legitimate relatives of Julia Capiao cannot inherit from an illegitimate child of the latter, because that is the clear and unmistakable provision of Article 992 of the New Civil Code. Neither can Lutgarda Capiao inherit from the legitimate relatives of Julia Capiao who are the plaintiffs in the instant case. A copy of the above decision was received by the petitioners on April 22, 1974. On May 14, 1974, they filed their motion for reconsideration. The motion having been denied, they filed their notice of appeal on August 26, 1974, stating that they were appealing to the Supreme Court from the summary judgment in view of the denial of their motion for reconsideration. they received the order of denial on August 22, 1974. On September 18, 1974, petitioners submitted their record on appeal for approval. On October 2, 1974, the same was approved in open court. The approval was, however, revoked on tile same day by the respondent judge after he received a telegram from the private respondent's counsel stating that they had just received a copy of the record on appeal through unregistered mail without a copy of the summary judgment and other exhibits and annexes. The respondent's counsel prayed for fifteen days within which to file his opposition to the record on appeal. On January 24, 1975, after considering the motion for approval of the record on appeal, the respondent's opposition thereto and the petitioners' reply, the respondent judge issued another order dismissing the record on appeal for having been filed outside the reglementary period. The petitioners moved for a reconsideration. After the motion was denied, they filed a petition for mandamus before the Court of Appeals seeking to compel the respondent judge to approve their record on appeal and to annul the latter's order dismissing said record on appeal. While the petition was pending before the appellate court, the petitioners filed a motion to elevate the case to the Supreme Court. In denying the above motion and in dismissing the petition altogether, the appellate court held: This case is analogous to Philippine National Bank v. Court of Appeals, et al. (8 SCRA 254). There, a petition for mandamus was denied by this Court which "considered itself without jurisdiction to act on the petition because it found from the very notice of appeal and record on appeal submitted by petitioner that it was its intention to appeal the main case directly to the Supreme Court" on questions of law. This Court's resolution was sustained by the Supreme Court. It was also contended, in said case, that the Court of Appeals should not have dismissed the petition outright but should have transferred it to the Supreme Court upon the theory that it was erroneously filed. In short, petitioner believed that the case should have been certified or elevated to the proper appellate tribunal. However, it was held that this Court was correct as 'Section 31 of the Judiciary Act of 1948, invoked by petitioner, only applies to cases that are erroneously appealed and not to special civil actions ... , (see also Philippine Products Co. v. Court of Appeals, 21 SCRA 870) WHEREFORE, the petition should be, as it is hereby dismissed. No costs. The legal questions raised to us are: (1) whether or not the trial court committed grave abuse of discretion when it dismissed the appeal of petitioners on the ground that the record on appeal was filed out of time; and (2) whether or not the Court of Appeals in dismissing the petition acted in accordance with law or with the applicable decisions of the Supreme Court and whether or not it departed from the usual course of judicial proceedings as set down by this Court. With regard to the first issue, we hold that the trial court acted correctly in dismissing the appeal on the ground that the record on appeal was filed out of time. The records bear out the fact that the petitioners filed their record on appeal nineteen days after the last day to perfect the appeal. Moreover, it did not incorporate the Motion for Summary Judgment with its Annexes and Exhibits nor was it accompanied by any motion for an extension of time to file a record on appeal which, if approved, could have justified its having been filed late. Furthermore, the appeal bond was filed fifteen (15) days late. We, therefore, rule that no grave abuse of discretion may be imputed against the respondent judge. As we held in the case of Garcia v. Echiverri (132 SCRA 638-639): xxx xxx xxx Well-rooted is the principle that perfection of an appeal within the statutory or reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory that deprives the appellate court of jurisdiction to alter the final judgment much less to entertain the appeal (Acda v. Minister of Labor, 119 SCRA 309; Agricultural and Industrial Marketing, Inc. v. Court of Appeals, 118 SCRA 49; and Santos v. Court of Appeals, 125 SCRA 22). In the case at bar, it is admitted that the decision of the lower court was received by private respondents on March 9, 1976. On March 29, 1976 (or on the 20th day) private respondents filed their first motion for reconsideration. On April 29, 1976, private respondents received the lower court's order denying the first motion for reconsideration, therefore, the last day for perfecting their appeal would be May 9, 1976. Since private respondents filed their notice of appeal only on June 4, 1976, the same was filed out of time. Consequently, the decision appealed from is already final and executory. On certain occasions, this Court has allowed the filing of an appeal outside the period prescribed by law in the interest of justice. Emphatic in the decisions cited by the petitioner are strong considerations of substantial justice. The present case does not warrant such liberality because the decision of the lower court is satisfactorily supported by the records. It is clear from the records that the petitioners cannot inherit the properties in question because of Article 992 of the Civil Code. Being relatives on the legitimate line of Julia Capiao they cannot inherit from tier illegitimate daughter. Their relative Julia Capiao predeceased the daughter, Lutgarda Capiao As explained by Manresa, whom the private respondents cited: xxx xxx xxx

Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code denies any right of succession. They cannot be called relatives and they have no right to inherit. Of course, there is a blood tie, but the law does not recognize it. In this Article 943 is based upon the reality of the facts and upon the presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by the natural child; the latter considers the privileged condition of the former and the resources of which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment. (7 Manresa, 3rd ed., p. 110). In the case of Castro vs. Court of Appeals (123 SCRA 787) we ruled: Where the interests of justice would not be served by a policy of liberality, however, we cannot cite a lower court as having acted with grave abuse of discretion simply because it has correctly but strictly applied the rules, In the instant case, the decision of the respondent court is supported by the records. A remand for further proceedings, therefore, would only result in needless delaysa few more years perhaps of a tortuous journey through new proceedings in the trial court, an intermediate appeal, and another resort to this Court through a petition for review to finally achieve the same result which is an order to pay an admitted indebtedness. Anent the second issue raised by the petitioners, we hold that the appellate court correctly dismissed the petition for mandamus on the ground that it had no appellate jurisdiction over the same. It should be noted that the petitioners stated that they were appealing the main case to this Court. Therefore, the Court of Appeals could not have exercised its appellate jurisdiction over the petition for mandamus since it was merely incidental to the main case. In the case of Philippine National Bank v. Court of Appeals (8 SCRA 254), the same case relied upon by the appellate court, we ruled: It is evident from the above-quoted resolution that the Court of Appeals denied the petition for mandamus because it found that petitioner unequivocably manifested in its notice of appeal dated September 1, 1960 its intention to appeal directly to the Supreme Court on purely questions of law and that it reiterated the same intention in the record on appeal it submitted on September 9, 1960 wherein it prayed that the same be approved and duly transmitted to the Supreme Court. And the Court of Appeals predicated its resolution on Section 30 of Republic Act 296 wherein it is expressly provided that the Court of Appeals shall have original jurisdiction to issue, among others, a writ of mandamus when such remedy is invoked merely in aid of its appellate jurisdiction. This has been interpreted to mean that, should the main case be appealed and the appeal should fall under the exclusive jurisdiction of the Court of Appeals, it is only then that said court can act on the special civil action of mandamus; otherwise, the jurisdiction to act thereon would devolve upon the Supreme Court ... Similarly, in the case of Philippine Product Co. v. Court of Appeals (21 SCRA 874), we ruled: Petitioner's submission that the Court of Appeals had no jurisdiction to entertain the petition for certiorari and prohibition filed Before it is well taken. By statute (Section 30, Republic Act 296 [The Judiciary Act]) the Court of Appeals may only issue writs of certiorari and prohibition "in aid of its appellate jurisdiction." This phrase has been consistently interpreted to mean that should the main case be appealed and the appeal fall under the exclusive appellate jurisdiction of the Court of Appeals, then only can it act on said special civil actions concerning a matter incidental to the main case. Otherwise, i.e., if the main case is not properly appealable to the Court of Appeals, jurisdiction to act on the special civil actions would devolve on the Supreme Court exclusively. (Miailhe v. Halili, 103 Phil. 639; Albar v. Carangdang, L-18003, Sept. 29, 1962; PNB v. Court of Appeals, L-18728, May 31, 1963; and Tuason v. Jaramino, L-18932-34, etc., Sept. 30, 1963) Furthermore, it is an established principle that the writ of mandamus may not be issued to control the discretion of a judge or to compel him to decide a case or motion in a particular way, the writ being available only to compel him to exercise his discretion or jurisdiction. (Phil. Air Lines Employees Association v. Phil. Air Lines, Inc., 111 SCRA 220). The respondent judge, therefore, cannot be compelled by such special civil action to approve the petitioners' appeal which was perfected after the reglementary period to do so had expired. The petitioners contend that the appellate court should have certified the petition to the Supreme Court, thus leaving the resolution of the issues to this Court. Since the main case is manifestly without merit, the action of the appellate court cannot be impugned. No considerations of substantial justice which would warrant the exercise of equity powers exist in this petition. WHEREFORE, the petition is hereby DISMISSED for lack of merit, with costs against the petitioners. SO ORDERED. G.R. No. L-19281 June 30, 1965 IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SANTILLON, CLARO SANTILLON, petitioner-appellant, vs. PERFECTA MIRANDA, BENITO U. MIRANDA and ROSARIO CORRALES, oppositors-appellees. Clodualdo P. Surio and Claro Santillon (in his own behalf) for petitioner-appellant. Patricio M. Patajo for oppositors-appellees. BENGZON, C.J.: This is an appeal from the order of the Court of First Instance of Pangasinan, specifying the respective shares of the principal parties herein in the intestate estate of Pedro Santillon. On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence, leaving one son, Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of land located in that province. About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in the petition were all conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the properties enumerated in the petition to said spouses Benito and Rosario; (c) that administration of the estate was not necessary, there being a case for partition pending; and (d) that if administration was necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified for the post. It appears that subsequently, oppositor Perfecta Miranda was appointed administratrix of the estate. On March 22, 1961, the court appointed commissioners to draft within sixty days, a project of partition and distribution of all the properties of the deceased Pedro Santillon.

On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the conflicting claims of the parties with respect to their respective rights in the estate. Invoking Art. 892 of the New Civil Code, he insisted that after deducting 1/2 from the conjugal properties is the conjugal share of Perfecta, the remaining 1/2 must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the other hand, claimed that besides her conjugal half, she was entitled under Art. 996 of the New Civil Code to another 1/2 of the remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta claimed 1/2. After due notice and hearing, the court, on June 28, 1961, issued an order, the dispositive portion of which reads: IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered that in the intestate succession of the deceased Pedro Santillon, the surviving spouse Perfecta Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF (1/2) share for the only son, Atty. Claro Santillon. This is after deducting the share of the widow as co-owner of the conjugal properties. ... . From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are involved. The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of the lower court is appealable. And the second, raised in appellant's lone assignment of error, is: How shall the estate of a person who dies intestate be divided when the only survivors are the spouse and one legitimate child? The First Issue: It is clear that the order of the lower court is final and, therefore, appealable to this Court. Under Rule 109, sec. 1, a person may appeal in special proceedings from an order of the Court of First Instance where such order "determines ... the distributive share of the estate to which such person is entitled." The Second Issue: Petitioner rests his claim to 3/4 of his father's estate on Art. 892 of the New Civil Code which provides that: If only the legitimate child or descendant of the deceased survives the widow or widower shall be entitled to one-fourth of the hereditary estate. ... . As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996 which provides: If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. Replying to Perfecta's claim, Claro says the article is unjust and unequitable to the extent that it grants the widow the same share as that of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the plural word "children" includes the singular "child." Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent provision on intestate succession shall apply, i.e., Art. 996. Some commentators of our New Civil Code seem to support Claro's contention; at least, his objection to fifty-fifty sharing. But others confirm the half and half idea of the Pangasinan court. This is, remember, intestate proceedings. In the New Civil Code's chapter on legal or intestate succession, the only article applicable is Art. 996. Our colleague, Mr. Justice J.B.L. Reyes, professor of Civil Law, is quoted as having expressed the opinion that under this article, when the widow survives with only one legitimate child, they share the estate in equal parts. 1 Senator Tolentino in his commentaries writes as follows: One child Surviving. If there is only one legitimate child surviving with the spouse, since they share equally, one-half of the estate goes to the child and the other half goes to the surviving spouse. Although the law refers to "children or descendants," the rule in statutory construction that the plural can be understood to include the singular is applicable in this case. (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.) The theory of those holding otherwise seems to be premised on these propositions: (a) Art. 996 speaks of "Children," therefore it does not apply when there is only one "child"; consequently Art. 892 (and Art. 888) should be applied, thru a process of judicial construction and analogy; (b) Art. 996 is unjust or unfair because, whereas intestate succession, the widow is assigned one-fourth only (Art. 892), she would get 1/2 in intestate. A. Children. It is a maxim of statutory construction that words in plural include the singular. 2 So Art. 996 could or should be read (and so applied) : "If the widow or widower and a legitimate child are left, the surviving spouse has the same share as that of the child." Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children," the consequences would be tremendous, because "children" will not include "child" in the following articles: ART. 887. The following are compulsory heirs: (1) legitimate children and descendants ... . ART. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate ... . ART. 896. Illegitimate children who may survive ... are entitled to one-fourth of the hereditary estate ... . (See also Art. 901). In fact, those who say "children" in Art. 996 does not include "child" seem to be inconsistent when they argue from the premise that "in testate succession the only legitimate child gets one-half and the widow, one-fourth." The inconsistency is clear, because the only legitimate child gets one-half under Art. 888, which speaks of "children," not "child." So if "children" in Art. 888 includes "child," the same meaning should be given to Art. 996. B. Unfairness of Art. 996. Such position, more clearly stated, is this: In testate succession, where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in intestate , if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or inequitable, they insist. On this point, it is not correct to assume that in testate succession the widow or widower "gets only one-fourth." She or he may get one-half if the testator so wishes. So, the law virtually leaves it to each of the spouses to decide (by testament, whether his or her only child shall get more than his or her survivor). Our conclusion (equal shares) seems a logical inference from the circumstance that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken, contained two paragraphs governing two contingencies, the first, where the widow or widower survives with legitimate children

(general rule), and the second, where the widow or widower survives with only one child (exception), Art. 996 omitted to provide for the second situation, thereby indicating the legislator's desire to promulgate just one general rule applicable to both situations. The resultant division may be unfair as some writers explain and this we are not called upon to discuss but it is the clear mandate of the statute, which we are bound to enforce. The appealed decision is affirmed. No costs in this instance. DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, AND CONNIE ALUAD, PETITIONERS, VS. ZENAIDO ALUAD, RESPONDENT. DECISION CARPIO MORALES, J.: Petitioners' mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin). Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself.[1] On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos"[2] (Deed of Donation) in favor of petitioners' mother Maria[3] covering all the six lots which Matilde inherited from her husband Crispin. The Deed of Donation provided: That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the DONEE the property above-described, to become effective upon the death of the DONOR, but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect; Provided, however, that anytime during the lifetime of the DONOR or anyone of them who should survive, they could use[,] encumber or even dispose of any or even all of the parcels of land herein donated.[4] (Emphasis and underscoring supplied) On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde's name. On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property.[5] Subsequently or on January 14, 1992, Matilde executed a last will and testament,[6]devising Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent. Matilde died on January 25, 1994, while Maria died on September 24 of the same year.[7] On August 21, 1995, Maria's heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint,[8] for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and damages against respondent, alleging: That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x; That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased mother, Maria Aluad who is the sole and only daughter of Matilde Aluad[.][9] To the complaint respondent alleged in his Answer.[10] That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from Matilde Aluad. These two lots are in his possession as true owners thereof. [11] (Underscoring supplied) Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence[12] to which it annexed an Amended Complaint[13] which cited the donation of the six lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted the motion and admitted the Amended Complaint.[14] Respondent filed an Amended Answer[15] contending, inter alia, that the Deed of Donation is forged and falsified and petitioners' change of theory showed that "said document was not existing at the time they filed their complaint and was concocted by them after realizing that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be established by them";[16] and that if ever said document does exist, the same was already revoked by Matilde "when [she] exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots without any opposition from Maria Aluad."[17]

The trial court, by Decision[18] of September 20, 1996, held that Matilde could not have transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed of Donation. Thus it disposed: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. 2. 3. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre; Ordering the defendant to deliver the possession of the subject lots to the plaintiffs; Ordering the defendant to pay the plaintiffs:

a. b.

Thirty thousand pesos (P30,000.00) as attorney's fees; Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully paid; Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and The costs of the suit.

c.

d.

Defendant's counterclaim is ordered dismissed for lack of merit. SO ORDERED.[19] On petitioners' motion, the trial court directed the issuance of a writ of execution pending appeal.[20] Possession of the subject lots appears to have in fact been taken by petitioners. By Decision[21] of August 10, 2006, the Court of Appeals reversed the trial court's decision, it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code, reading: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will shall, also sign, as aforesaid, each and every page thereof, except the last on the left margin and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that that testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator, and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not so declare with respect to Lot No. 674, as Matilde's last will and testament had not yet been probated. Thus the Court of Appeals disposed: WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and damages is REVERSED and SET ASIDE. A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly,plaintiffs-appellees are directed to return the possession of the said lot to the defendant-appellant. Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorney's fees and litigation expenses. Costs against plaintiffs-appellees. SO ORDERED.[22] (Emphasis in the original; underscoring supplied) Their Motion for Reconsideration[23] having been denied,[24] petitioners filed the present Petition for Review,[25] contending that the Court of Appeals erred I

X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS' MOTHER IS IN FACT A DONATION MORTIS CAUSA. II X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME. III X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF. IV X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY'S FEES AND COST[S] OF SUIT.[26] As did the appellate court, the Court finds the donation to petitioners' mother one ofmortis causa, it having the following characteristics: (1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; (2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and

(3) That the transfer should be void if the transferor should survive the transferee.[27] (Emphasis and underscoring supplied) The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners' mother during her (Matilde's) lifetime.[28] The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should survive, they could use, encumber or even dispose of any or even all the parcels of land herein donated"[29]means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other limitations than those established by law is an attribute of ownership.[30] The phrase in the Deed of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves concede that such phrase does not refer to the donee, thus: x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was executed on 14 November 1981, as her husband - Crispin Aluad [-] had long been dead as early as 1975.[31] The trial court, in holding that the donation was inter vivos, reasoned: x x x The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions, "but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect". When the donor provides that should the "DONEE" xxx die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect" the logical construction thereof is that after the execution of the subject donation, the same became effective immediately and shall be "deemed rescinded and [of] no further force and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor. Understandably, the arrival of this resolutory term or period cannot rescind and render of no further force and effect a donation which has never become effective, because, certainly what donation is there to be rescinded and rendered of no further force and effect upon the arrival of said resolutory term or period if there was no donation which was already effective at the time when the donee died?[32] (Underscoring supplied) A similar ratio in a case had been brushed aside by this Court, however, thus: x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos. Petitioners' arguments are bereft of merit.[33] xxxx x x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive characteristics of a

donation mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated to the donee or independently of, and not by reason of her death, she would not have expressed such proviso in the subject deeds.[34] (Underscoring supplied) As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matilde's acts of possession as she continued to pay the taxes for the said properties which remained under her name; appropriated the produce; and applied for free patents for which OCTs were issued under her name."[35] The donation being then mortis causa, the formalities of a will should have been observed[36] but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.[37] Further, the witnesses did not even sign the attestation clause[38] the execution of which clause is a requirement separate from the subscription of the will and the affixing of signatures on the left-hand margins of the pages of the will. So the Court has emphasized: x x x Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will from the requisite that the will be "attested and subscribed by [the instrumental witnesses]. The respective intents behind these two classes of signature[s] are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will.An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses' undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. x x x It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.[39] (Emphasis and underscoring supplied) Furthermore, the witnesses did not acknowledge the will before the notary public,[40]which is not in accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary public by the testator and the witnesses. More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each page was not also followed.[41] The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void and transmitted no right to petitioners' mother. But even assuming arguendo that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.[42] Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject of course to the qualification that her (Matilde's) will must be probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991. Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeed mortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to them because they had acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since 1978.[43] Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and issues not brought to the attention of the trial court cannot be raised for the first time on appeal.[44] For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.[45] WHEREFORE, the petition is DENIED. G.R. No. 155733 January 27, 2006

IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA DELGADO PERLAS, CAROLINA DELGADOARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and MELINDA DELGADO CAMPO-MADARANG, Petitioners, vs.

HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., namely, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and GUILLERMINA RUSTIA, as Oppositors;1 and GUILLERMA RUSTIA, as Intervenor,2 Respondents.3 DECISION CORONA, J.: In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55,4 in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision5 dated October 24, 2002. FACTS OF THE CASE This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado.6 The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution. The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters,7 his nephews and nieces,8 his illegitimate child,9 and the de facto adopted child10 (ampun-ampunan) of the decedents. The alleged heirs of Josefa Delgado The deceased Josefa Delgado was the daughter of Felisa11 Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural children of Felisa Delgado. However, Lucio Campo was not the first and only man in Felisa Delgados life. Before him was Ramon Osorio12with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is in dispute. The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successional rights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives.13 If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate half-blood brother of Josefa Delgado and therefore excluded from the latters intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgados intestate estate, as they would all be within the illegitimate line. Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento14 stated that he was "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado),15 significantly omitting any mention of the name and other circumstances of his father.16 Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place. Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of selfadjudication of the remaining properties comprising her estate. The marriage of Guillermo Rustia and Josefa Delgado Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado17 but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as "Seorita" or unmarried woman. The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition, oppositors presented the following pieces of evidence: 1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines; 2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947; 3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;18 4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado. The alleged heirs of Guillermo Rustia Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngsters Guillermina Rustia Rustia and Nanie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect as ampunampunan. During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child,19 the intervenor-respondent Guillerma Rustia, with one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her fathers demise. In fact, Josefa Delgados obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian.20

Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code.21 On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption22 of their ampunampunan Guillermina Rustia. He stated under oath "[t]hat he ha[d] no legitimate, legitimated, acknowledged natural children or natural children by legal fiction."23 The petition was overtaken by his death on February 28, 1974. Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. deDamian and Hortencia RustiaCruz, and by the children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda.24 ANTECEDENT PROCEEDINGS On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the "spouses Josefa Delgado and Guillermo Rustia" with the RTC of Manila, Branch 55.25 This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz;26 (2) the heirs of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampun-ampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate half-blood relative Josefa Delgado. In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving descendant in the direct line of Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the motion was granted. On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia were never married but had merely lived together as husband and wife. On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence. On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987. On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates.27 The dispositive portion of the decision read: WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8, 1972, and entitled to partition the same among themselves in accordance with the proportions referred to in this Decision. Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of the oppositors and the other parties hereto. The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect. As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA. Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof. SO ORDERED.28 On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time.29 They then filed a petition for certiorari and mandamus30 which was dismissed by the Court of Appeals.31 However, on motion for reconsideration and after hearing the parties oral arguments, the Court of Appeals reversed itself and gave due course to oppositors appeal in the interest of substantial justice.32 In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision33 read: As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice. xxx xxx xxx The respondent court likewise pointed out the trial courts pronouncements as to certain matters of substance, relating to the determination of the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing. xxx xxx xxx In this instance, private respondents intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings. xxx xxx xxx A review of the trial courts decision is needed.

xxx xxx xxx WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision. SO ORDERED. Acting on the appeal, the Court of Appeals34 partially set aside the trial courts decision. Upon motion for reconsideration,35 the Court of Appeals amended its earlier decision.36 The dispositive portion of the amended decision read: With the further modification, our assailed decision is RECONSIDERED and VACATED. Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as administratrix of his estate. The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado shall issue to the nominee of the oppositors-appellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrators qualification and posting of the bond. The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15, 1973 isREMANDED to the trial court for further proceedings to determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication. Hence, this recourse. The issues for our resolution are: 1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado; 2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are; 3. who should be issued letters of administration. The marriage of Guillermo Rustia and Josefa Delgado A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable.37 Rule 131, Section 3 of the Rules of Court provides: Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx xxx xxx In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as "spouses." Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness38 attesting that they were not married, and a baptismal certificate which referred to Josefa Delgado as "Seorita" or unmarried woman.39 We are not persuaded. First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place.40 Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia,41 the passport issued to her as Josefa D. Rustia,42 the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado43 and the titles to the properties in the name of "Guillermo Rustia married to Josefa Delgado," more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein.44 No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners. Second, Elisa vda. de Anson, petitioners own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had "lived together as husband and wife." This again could not but strengthen the presumption of marriage. Third, the baptismal certificate45 was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein,46 such as the alleged single or unmarried ("Seorita") civil status of Josefa Delgado who had no hand in its preparation. Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order

of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety.Semper praesumitur pro matrimonio. Always presume marriage.47 The Lawful Heirs Of Josefa Delgado To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed. As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them.48On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary. Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgados and Caridad Concepcions Partida de Casamiento49 identifying Luis as "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado).50 All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado,51 were her natural children.52 Pertinent to this matter is the following observation: Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally? The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that succession should be allowed, even when the illegitimate brothers and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally.53 Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado. We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces.54 Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance.55 The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia,56 they are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code:57 Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other one-half. Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate: SECTION 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied) The Lawful Heirs Of Guillermo Rustia Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child58 of Guillermo Rustia. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity.59 She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect. Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent. Under the new law, recognition may be compulsory or voluntary.60 Recognition is compulsory in any of the following cases: (1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) when the child is in continuous possession of status of a child of the alleged father (or mother)61 by the direct acts of the latter or of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father; (4) when the child has in his favor any evidence or proof that the defendant is his father. 62 On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing.63

Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts.64 Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent.65On the death of either, the action for compulsory recognition can no longer be filed.66 In this case, intervenor Guillermas right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974. The claim of voluntary recognition (Guillermas second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his.67 Did intervenors report card from the University of Santo Tomas and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenors parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the Sunday Times on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenors claim. The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latters death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote: Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence.68 Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and the ampunampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters,69 nieces and nephews.70 Entitlement To Letters Of Administration An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator: Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed.71 The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates,72 a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications: 1. Guillermo Rustias June 15, 1973 affidavit of self-adjudication is hereby ANNULLED. 2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgados full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgados grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate. 3. Guillermo Rustias estate (including its one-half share of Josefa Delgados estate) shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates. 4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court. No pronouncement as to costs. SO ORDERED.

G.R. No. 132524 December 29, 1998 FEDERICO C. SUNTAY, petitioner, vs. ISABEL COJUANGCO-SUNTAY * and HON. GREGORIO S. SAMPAGA, Presiding Judge, Branch 78, Regional Trial Court, Malolos, Bulacan, Respondents MARTINEZ, J.: Which should prevail between the ratio decidendi and the fallo of a decision is the primary issue in this petition forcertiorari under Rule 65 filed by petitioner Federico C. Suntay who opposes respondent Isabel's petition for appointment as administratrix of her grandmother's estate by virtue of her right of representation. The suit stemmed from the following: On July 9, 1958, Emilio Aguinaldo Suntay (son of petitioner Federico Suntay) and Isabel Cojuangco-Suntay were married in the Portuguese Colony of Macao. Out of this marriage, three children were born namely: Margarita Guadalupe, Isabel Aguinaldo and Emilio Aguinaldo all surnamed Cojuangco Suntay. After 4 years, the marriage soured so that in 1962, Isabel Cojuangco-Suntay filed a criminal case 1 against her husband Emilio Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filed before the then Court of First Instance (CFI) 2 a complaint for legal separation against his wife, charging her, among others, with infidelity and praying for the custody and care of their children who were living with their mother. 3 The suit was docketed as civil case number Q-7180. On October 3, 1967, the trial court rendered a decision the dispositive portion of which reads: WHEREFORE, the marriage celebrated between Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay on July 9, 1958 is hereby declared null and void and of no effect as between the parties. It being admitted by the parties and shown by the record that the question of the case and custody of the three children have been the subject of another case between the same parties in another branch of this Court in Special Proceeding No. 6428, the same cannot be litigated in this case. With regard to counterclaim, in view of the manifestation of counsel that the third party defendants are willing to pay P50,000.00 for damages and that defendant is willing to accept the offer instead of her original demand for P130,000.00, the defendant is awarded said sum of P50,000.00 as her counterclaim and to pay attorney's fees in the amount of P5.000.00. SO ORDERED. 4 (Emphasis supplied). As basis thereof, the CFI said: From February 1965 thru December 1965 plaintiff was confined in the Veterans Memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967) the patient was already out of the hospital he continued to be under observation and treatment. It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked progress, the remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95. (sic) A marriage may be annulled for nay of the following causes after (sic) existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife. There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the findings of the neuropsychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 5 (Emphasis supplied). On June 1, 1979, Emilio Aguinaldo Suntay predeceased his mother, the decedent Cristina Aguinaldo-Suntay. The latter is respondent Isabel's paternal grandmother. The decedent died on June 4, 1990 without leaving a will. 6 Five years later or on October 26, 1995, respondent Isabel Aguinaldo Cojuangco Suntay filed before the Regional Trial Court (RTC) 7 a petition for issuance in her favor of Letters of Administration of the Intestate Estate of her late grandmother Cristina Aguinaldo-Suntay which case was docketed as Special Proceeding Case No. 117-M-95. In her petition, she alleged among others, that she is one of the legitimate grandchildren of the decedent and prayed that she be appointed as administratrix of the estate. 8 On December 15, 1995, petitioner filed an Opposition claiming that he is the surviving spouse of the decedent, that he has been managing the conjugal properties even while the decedent has been alive and is better situated to protect the integrity of the estate than the petitioner, that petitioner and her family have been alienated from the decedent and the Oppositor for more than thirty (30) years and thus, prayed that Letters of Administration be issued instead to him. 9 On September 22, 1997 or almost two years after filing an opposition, petitioner moved to dismiss the special proceeding case alleging in the main that respondent Isabel should not be appointed as administratrix of the decedent's estate. In support thereof, petitioner argues that under Article 992 of the Civil Code an illegitimate child has no right to succeed by right of representation the legitimate relatives of her father or mother. Emilio Aguinaldo Suntay, respondent Isabel's father predeceased his mother, the late Cristina Aguinaldo Suntay and thus, opened succession by representation. Petitioner contends that as a consequence of the declaration by the then CFI of Rizal that the marriage of respondent Isabel's parents is "null and void," the latter is an illegitimate child, and has no right nor interest in the estate of her paternal grandmother the decedent. 10 On October 16, 1997, the trial court issued the assailed order denying petitioner's Motion to Dismiss. 11 When his motion for reconsideration was denied by the trial court in an order dated January 9, 1998, 12 petitioner, as mentioned above filed this petition. Petitioner imputes grave abuse of discretion to respondent court in denying his motion to dismiss as well as his motion for reconsideration on the grounds that: (a) a motion to dismiss is appropriate in a special proceeding for the settlement of estate of a deceased person; (b) the motion to

dismiss was timely filed; (c) the dispositive portion of the decision declaring the marriage of respondent Isabel's parents "null and void" must be upheld; and (d) said decision had long become final and had, in fact, been executed. On the other hand, respondent Isabel asserts that petitioner's motion to dismiss was alte having been filed after the opposition was already filed in court, the counterpart of an answer in an ordinary civil action and that petitioner in his opposition likewise failed to specifically deny respondent Isabel's allegation that she is a legitimate child of Emilio Aguinaldo Suntay, the decedent's son. She further contends that petitioner proceeds from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion because in an action for annulment of a marriage, the court either sustains the validity of the marriage or nullifies it. It does not, after hearing declare a marriage "voidable" otherwise, the court will fail to decide and lastly, that the status of marriages under Article 85 of the Civil Code before they are annulled is "voidable." The petition must fail. Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. 13 There must be a capricious, arbitrary and whimsical exercise of power for it to prosper. 14 A reading of the assailed order, however, shows that the respondent court did not abuse its discretion in denying petitioner's motion to dismiss, pertinent portions of which are quoted thereunder, to wit: The arguments of both parties judiciously and objectively assessed and the pertinent laws applied, the Court finds that a motion to dismiss at this juncture is inappropriate considering the peculiar nature of this special proceeding as distinguished from an ordinary civil action. At the outset, this proceeding was not adversarial in nature and the petitioner was not called upon to assert a cause of action against a particular defendant. Furthermore, the State has a vital interest in the maintenance of the proceedings, not only because of the taxes due it, but also because if no heirs qualify, the State shall acquire the estate by escheat. xxx xxx xxx The court rules, for the purpose of establishing the personality of the petitioner to file and maintain this special proceedings, that in the case bench, the body of the decision determines the nature of the action which is for annulment, not declaration of nullity. The oppositor's contention that the fallo of the questioned decision (Annex "A" Motion) prevails over the body thereof is not without any qualification. It holds true only when the dispositive portion of a final decision is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction. Where there is ambiguity or uncertainty, the opinion or body of the decision may be referred to for purposes of construing the judgment (78 SCRA 541 citing Morelos v. Go Chin Ling; and Heirs of Juan Presto v. Galang). The reason is that the dispositive portion must find support from the decision'sratio decidendi. Per decision of the Court of First Instance Branch IX of Quezon City, marked as Annex "A" of oppositor's motion, the marriage of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay was annulled on the basis of Art. 85 par. 3 of the Civil Code which refers to marriages which are considered voidable. Petitioner being conceived and born of a voidable marriage before the decree of annulment, she is considered legitimate (Art. 89, par. 2, Civil Code of the Phils.). 15 The trial court correctly ruled that "a motion to dismiss at this juncture is inappropriate." The 1997 Rules of Civil Procedure governs the procedure to be observed in actions, civil or criminal and special proceedings. 16 The Rules do not only apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not therein provided for. Special proceedings being one of the actions under the coverage of the Rules on Civil Procedure, a motion to dismiss filed thereunder would fall under Section 1, Rule 16 thereof. Said rule provides that the motion to dismiss may be filed "within the time for but before filing the answer to the complaint." Clearly, the motion should have been filed on or before the filing of petitioner's opposition 17 which is the counterpart of an answer in ordinary civil actions. Not only was petitioner's motion to dismiss filed out of time, it was filed almost two years after respondent Isabel was already through with the presentation of her witnesses and evidence and petitioner had presented two witnesses. The filing of the motion to dismiss is not only improper but also dilatory. The respondent court, far from deviating or straying off course from established jurisprudence on this matter, as petitioner asserts, had in fact faithfully observed the law and legal precedents in this case. In fact, the alleged conflict between the body of the decision and the dispositive portion thereof which created the ambiguity or uncertainty in the decision of the CFI of Rizal is reconcilable. The legal basis for setting aside the marriage of respondent Isabel's parents is clear under paragraph 3, Article 85 of the New Civil Code, the law in force prior to the enactment of the Family Code. Petitioner, however, strongly insists that the dispositive portion of the CFI decision has categorically declared that the marriage of respondent Isabel's parents is "null and void" and that the legal effect of such declaration is that the marriage from its inception is void and the children born out of said marriage are illegitimate. Such argument cannot be sustained. Articles 80, 81, 82 and 83 18 of the New Civil Code classify what marriages are void while Article 85 enumerates the causes for which a marriage may be annulled. 19 The fundamental distinction between void and voidable marriages is that a void marriage is deemed never to have taken place at all. The effects of void marriages, with respect to property relations of the spouses are provided for under Article 144 of the Civil Code. Children born of such marriages who are called natural children by legal fiction have the same status, rights and obligations as acknowledged natural children under Article 89 20 irrespective of whether or not the parties to the void marriage are in good faith or in bad faith. On the other hand, a voidable marriage, is considered valid and produces all its civil effects, until it is set aside by final judgment of a competent court in an action for annulment. Juridically, the annulment of a marriage dissolves the special contract as if it had never been entered into but the law makes express provisions to prevent the effects of the marriage from being totally wiped out. The status of children born in voidable marriages is governed by the second paragraph of Article 89 which provides that: Children conceived of voidable marriages before the decree of annulment shall be considered legitimate; and children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children, and are also called natural children by legal fiction. 21 (Emphasis supplied).

Stated otherwise, the annulment of "the marriage by the court abolishes the legal character of the society formed by the putative spouses, but it cannot destroy the juridical consequences which the marital union produced during its continuance." 22 Indeed, the terms "annul" and "null and void" have different legal connotations and implications, Annul means to reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with 23whereas null and void is something that does not exist from the beginning. A marriage that is annulledpresupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status or condition which already exists from the very beginning. There is likewise no merit in petitioner's argument that it is the dispositive portion of the decision which must control as to whether or not the marriage of respondent Isabel's parents was void or voidable. Such argument springs from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion. Parenthetically, it is an elementary principle of procedure that the resolution of the court in a given issue as embodied in the dispositive part of a decision or order is the controlling factor as to settlement of rights of the parties and the questions presented, notwithstanding statement in the body of the decision or order which may be somewhat confusing, 24 the same is not without a qualification. The foregoing rule holds true only when the dispositive part of a final decision or order is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction-which usually is "the case where the order or decision in question is that of a court not of record which is not constitutionally required to state the facts and the law on which the judgment is based." 25 Assuming that a doubt or uncertainty exists between the dispositive portion and the body of the decision, effort must be made to harmonize the whole body of the decision in order to give effect to the intention, purpose and judgment of the court. In Republic v. de los Angeles 26 the Court said: Additionally, Article 10 of the Civil Code states that "[i]n case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This mandate of law, obviously cannot be any less binding upon the courts in relation to its judgments. . . .The judgment must be read in its entirety, and must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part if possible, and to effectuate the intention and purpose of the Court, consistent with the provisions of the organic law. (49 C.J.S., pp. 863-864) [Emphasis supplied]. Thus, a reading of the pertinent portions of the decision of the CFI of Rizal quoted earlier shows that the marriage is voidable: It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrict (sic) treatment; that even if the subject has shown marked progress, he remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiff's mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95 (sic) A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; xxx xxx xxx There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 27 Inevitably, the decision of the CFI of Rizal declared null and void the marriage of respondent Isabel's parents based on paragraph 3, Article 85 of the New Civil Code. The legal consequences as to the rights of the children are therefore governed by the first clause of the second paragraph of Article 89. A contrary interpretation would be anathema to the rule just above-mentioned. Based on said provision the children of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay who were conceived and born prior to the decree of the trial court setting aside their marriage on October 3, 1967 are considered legitimate. For purposes of seeking appointment as estate administratrix, the legitimate grandchildren, including respondent Isabel, may invoke their successional right of representation the estate of their grandmother Cristina Aguinaldo Suntay after their father, Emilio Aguinaldo Suntay, had predeceased their grandmother. This is, however, without prejudice to a determination by the courts of whether the Letters of Administration may be granted to her. Neither do the Court adjudged herein the successional rights of the personalities involved over the decedent's estate. It would not therefore be amiss to reiterate at this point what the Court, speaking through Chief Justice Ruiz Castro, emphasized to "all magistrates of all levels of the judicial hierarchy that extreme degree of care should be exercised in the formulation of the dispositive portion of a decision, because it is this portion that is to be executed once the decision becomes final. The adjudication of the rights and obligations of thoe parties, and the dispositions made as well as the directions and instructions given by the court in the premises in conformity with the body of the decision, must all be spelled out clearly, distinctly and unequivocally leaving absolutely no room for dispute, debate or interpretation. 28 WHEREFORE, finding no grave abuse of discretion, the instant petition is DISIMISSED. SO ORDERED.