WILLS AND SUCCESSION

I.

CONCEPT OF SUCCESSION

Art. 774. Succession is a mode of acquisition by virtue of which the

property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another
or others either by his will or by operation of law. (n)
II.
A.

KINDS OF SUCCESSION:
TESTAMENTARY

Art. 779. Testamentary succession is that which results from the

designation of an heir, made in a will executed in the form
prescribed by law. (n)
B.

LEGAL OR INTESTATE

Art. 960. Legal or intestate succession takes place:

1.

If a person dies without a will, or with a void will, or one

which has subsequently lost its validity;

2.

When the will does not institute an heir to, or dispose of

all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the property
of which the testator has not disposed;

3.

If the suspensive condition attached to the institution

of heir does not happen or is not fulfilled, or if the heir
dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes
place;

4.
C.

When the heir instituted is incapable of succeeding,

except in cases provided in this Code. (912a)
MIXED

Art. 780. Mixed succession is that effected partly by will and partly by
operation of law.
D.

CONTRACTUAL (superseded by Art. 84 of the Family Code)

III.
A.

TESTAMENTARY SUCCESSION
WILLS
1.

DEFINITION

Art. 783. A will is an act whereby a person is permitted, with the

formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
B.

CHARACTERISTICS OF WILLS

1.

Purely statutory, formal

Art. 783
2.

Free and voluntary

Art. 839. The will shall be disallowed in any of the following cases:
1.

If the formalities required by law have not been complied with;

2.

If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;

3.

If it was executed through force or under duress, or the

influence of fear, or threats;

4.

If it was procured by undue and improper pressure and

influence, on the part of the beneficiary or of some other
person;

5.

If the signature of the testator was procured by fraud;

6.

If the testator acted by mistake or did not intend that the

instrument he signed should be his will at the time of affixing his
signature thereto. (n)

3.

Essentially revocable

Art. 828. A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void. (737a)
4.

Testator must have testamentary capacity

a.

Not prohibited by law

Art. 796. All persons who are not expressly prohibited by law may make a
will. (662)
b.

18 years old or over

Art. 797. Persons of either sex under eighteen years of age cannot
make a will. (n)

c.

Of sound and disposing mind

Art. 798. In order to make a will it is essential that the testator be of

sound mind at the time of its execution. (n)
5.

Disposition must be mortis causa

Art. 777. The rights to the succession are transmitted from the moment
of the death of the decedent. (657a)
VITUG VS CA 183 SCRA 755
Facts:
This case is a chapter in an earlier suit decided by this Court 1 involving the
probate of the two wills of the late Dolores Luchangco Vitug, who died in
New York, U. S.A.naming private respondent Rowena Faustino-Corona
executrix. In our said decision, we upheld the appointment of Nenita Alonte
as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's)
widower, petitioner Romarico G. Vitug, pending probate.On January 13,
1985, Romarico G. Vitug filed a motion asking for authority from the
probate court to sell certain shares of stock and real properties belonging to
the estate to cover allegedly his advances to the estate in the sum of
P667,731.66, plus interests, which he claimed were personal funds.Rowena
Corona opposed the motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038 were conjugal partnership
properties and part of the estate, and hence, there was allegedly no ground
for reimbursement. She also sought his ouster for failure to include the
sums in question for inventory and for "concealment of funds belonging to
the estate."Vitug insists that the said funds are his exclusive property
having acquired the same through a survivorship agreement executed with
his late wife and the bank on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as
the BANK), that all money now or hereafter deposited by us or any or either
of us with the BANK in our joint savings current account shall be the
property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of
either, any or all of us during our lifetime, or the receipt or check of the
survivor or survivors, for any payment or withdrawal made for our abovementioned account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal.
The trial courts upheld the validity of this agreement and granted
"the motion to sell some of the estate of Dolores L. Vitug, the

proceeds of which shall be used to pay the personal funds of

Romarico Vitug in the total sum of P667,731.66 ... ."
On the other hand, the Court of Appeals, in the petition for certiorari filed
by the herein private respondent, held that the above-quoted
survivorship agreement constitutes a conveyance mortis causa
which "did not comply with the formalities of a valid will as
prescribed by Article 805 of the Civil Code," and secondly,
assuming that it is a mere donation inter vivos, it is a prohibited
donation under the provisions of Article 133 of the Civil Code.
In his petition, Vitug, the surviving spouse, assails the appellate court's
ruling on the strength of our decisions in Rivera v. People's Bank and Trust
Co.and Macam v. Gatmaitan in which we sustained the validity of
"survivorship agreements" and considering them as aleatory contracts.
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa,
which should be embodied in a will. A will has been defined as "a
personal, solemn, revocable and free act by which a capacitated
person disposes of his property and rights and declares or complies
with duties to take effect after his death."
In other words, the bequest or device must pertain to the testator.
In this case, the monies subject of savings account No. 35342-038
were in the nature of conjugal funds In the case relied on, Rivera v.
People's Bank and Trust Co., we rejected claims that a survivorship
agreement purports to deliver one party's separate properties in
favor of the other, but simply, their joint holdings:
... Such conclusion is evidently predicated on the assumption that
Stephenson was the exclusive owner of the funds-deposited in the bank,
which assumption was in turn based on the facts (1) that the account
was originally opened in the name of Stephenson alone and (2)
that Ana Rivera "served only as housemaid of the deceased." But it
not infrequently happens that a person deposits money in the bank in the
name of another; and in the instant case it also appears that Ana Rivera
served her master for about nineteen years without actually
receiving her salary from him. The fact that subsequently
Stephenson transferred the account to the name of himself and/or
Ana Rivera and executed with the latter the survivorship
agreement in question although there was no relation of kinship
between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank account.
In the absence, then, of clear proof to the contrary, we must give full faith
and credit to the certificate of deposit which recites in effect that the funds
in question belonged to Edgar Stephenson and Ana Rivera; that they were
joint (and several) owners thereof; and that either of them could withdraw

any part or the whole of said account during the lifetime of both, and the
balance, if any, upon the death of either, belonged to the survivor.
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract
whereby, according to article 1790 of the Civil Code, one of the
parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which is uncertain
or will happen at an indeterminate time. As already stated, Leonarda
was the owner of the house and Juana of the Buick automobile and most of
the furniture. By virtue of Exhibit C, Juana would become the owner of the
house in case Leonarda died first, and Leonarda would become the owner
of the automobile and the furniture if Juana were to die first. In this manner
Leonarda and Juana reciprocally assigned their respective property to one
another conditioned upon who might die first, the time of death
determining the event upon which the acquisition of such right by the one
or the other depended. This contract, as any other contract, is binding upon
the parties thereto. Inasmuch as Leonarda had died before Juana, the latter
thereupon acquired the ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the automobile and of the
furniture if Juana had died first.
Neither is the survivorship agreement a donation inter vivos, for
obvious reasons, because it was to take effect after the death of
one party. Secondly, it is not a donation between the spouses
because it involved no conveyance of a spouse's own properties to
the other.
The validity of the contract seems debatable by reason of its
"survivor-take-all" feature, but in reality, that contract imposed a
mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code.
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both
reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at an
indeterminate time.
nder the aforequoted provision, the fulfillment of an aleatory contract
depends on either the happening of an event which is (1)
"uncertain," (2) "which is to occur at an indeterminate time." A
survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance

have been held to fall under the first category, while a contract for life
annuity or pension under Article 2021, et sequentia, has been
categorized under the second. In either case, the element of risk is
present. In the case at bar, the risk was the death of one party and
survivorship of the other.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death
a vested right over the amounts under savings account No. 35342038 of the Bank of America. Insofar as the respondent court ordered
their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the
court was in error. Being the separate property of petitioner, it forms no
more part of the estate of the deceased.
6.

Testator must have animus testandi purpose is to transfer

title via a testamentary disposition in contemplation of
death, to take effect upon testators death.

C.

INTERPRETATION OF WILLS

1.

In favor of validity

Art. 788. If a testamentary disposition admits of different interpretations, in

case of doubt, that interpretation by which the disposition is to be
operative shall be preferred.
2.

In case of ambiguities

Art. 789. When there is an imperfect description, or when no person or

property exactly answers the description, mistakes and omissions must
be corrected, if the error appears from the context of the will or
from extrinsic evidence, excluding the oral declarations of the testator
as to his intention; and when an uncertainty arises upon the face of
the will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding such
oral declarations. (n)
a.
1.
2.
3.
b.

Latent or intrinsic ambiguity that which does not appear on the

face of the will and is discovered only by extrinsic evidence;
When there is an imperfect description of the heir, legatee, or
devisee;
When there is an imperfect description of the gift being given;
When only one recipient is designated but it turns out, there are
two or more who fit the description;
Patent or extrinsic ambiguity that which appears on the face of
the will itself; by examining the provisions itself, it is evident that it
is not clear;

How to cure ambiguities:

a.
b.

By examining the will itself;

Extrinsic evidence such as written declarations of the testator (oral
declarations not allowed since contrary to the dead mans statute)

3.

Interpretation of words

a.

As to the time of execution

Art. 795. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made. (n)
Kinds of validity
A.

Extrinsic validity refers to the forms and solemnities needed

a. What must be observed is the law in force at the time the
will is executed;
b. What law of the land must be observed depends:
i. If the testator is a Filipino, he can observe
Philippine laws; or the laws of the country where
he may be; laws of the country where he
executes the will;
ii. If the testator is an alien who is abroad, he can
follow the law of his domicile; or his nationality;
or Philippine laws; or where he executes the will;
iii. If the testator is an alien in the Philippines, he
can follow the law of his nationality or the laws
of the Philippines, since he executes the will
here;

B.

Intrinsic validity refers to the legality of the provisions in an

instrument
a. Successional rights are governed by the law in force at
the TIME OF THE DECEDENTS DEATH;
b. Laws that must be observed depends: under Philippine
Law:
i. National law of the decedent; law of his country
or nationality; regardless of the place of
execution and the place of death;
ii. RENVOI DOCTRINE: referring back to the forum
of the problem
1. Where the conflict rules under the
decedents national law refers the
matter to the law of the domicile;
iii. Intestate and testamentary succession both with
respect to:
1. The order of succession
2. The amount of successional rights
3. And
the
intrinsic
validity
of
testamentary provisions
Shall be regulated by the national law of the
person whose succession is under consideration,
whatever may be the nature of the property, and
regardless of the country where said property
may be found.

Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense
can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that he was unacquainted with such technical sense.
(675a)
4.

Interpretation as a whole

Art. 791. 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. (n)
5.

Separability of invalid provisions

Art. 792. The invalidity of one of several dispositions contained in a will

does not result in the invalidity of the other dispositions, unless it
is to be presumed that the testator would not have made such
other dispositions if the first invalid disposition had not been made.
(n)
6.

After-acquired property

Art. 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his intention. (n)
7.

Extent of interest covered

Art. 794. Every devise or legacy shall cover all the interest which the
testator could device or bequeath in the property disposed of,
unless it clearly appears from the will that he intended to convey a less
interest. (n)
The entire interest of the testator in the property is given, not more not
less;
D.

LAW GOVERNING FORM

b.

As to the place of execution

Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which
they are executed.
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. (678, 688a)
Art. 815. When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the country
in which he may be. Such will may be probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of
the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code
prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of the
country of which he is a citizen or subject, and which might be proved
and allowed by the law of his own country, shall have the same effect as
if executed according to the laws of the Philippines. (n)
Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the benefit
of a third person. (669)
Art. 819. Wills, prohibited by the preceding article, executed by
Filipinos in a foreign country shall not be valid in the Philippines,
even though authorized by the laws of the country where they may have
been executed. (733a)
E.

LAW GOVERNING CONTENT

a.

As to time

Art. 2263. Rights to the inheritance of a person who died, with or

without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous laws, and by
the Rules of Court. The inheritance of those who, with or without a will,
die after the beginning of the effectivity of this Code, shall be adjudicated
and distributed in accordance with this new body of laws and by the Rules
of Court; but the testamentary provisions shall be carried out insofar as
they may be permitted by this Code. Therefore, legitimes, betterments,
legacies and bequests shall be respected; however, their amount shall be

reduced if in no other manner can every compulsory heir be given his full
share according to this Code. (Rule 12a)
b.

As to successional rights

Art. 16. Real property as well as personal property is subject to the law of
the country where it is stipulated.
CAYETANO VS LEONIDES 129 SCRA 524
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory heir,
he executed an Affidavit of Adjudication under Rule 74, Section I of the
Rules of Court whereby he adjudicated unto himself the ownership of the
entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed
a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased
testatrix.In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a permanent
resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.;
As a general rule, the probate court's authority is limited only to
the extrinsic validity of the will, the due execution thereof, the
testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the court has declared that the will has
been duly authenticated. However, where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue. (Maninang vs. Court of Appeals,
114 SCRA 478).
the private respondents have sufficiently established that
Adoracion was, at the time of her death, an American citizen and a
permanent
resident
of
Philadelphia,
Pennsylvania,
U.S.A.
Therefore, under Article 16 par. (2) and 1039 of the Civil Code
which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person

whose succession is under consideration, whatever may be the nature of

the property and regardless of the country wherein said property may be
found.

Art. 805.

Art. 1039.
Capacity to succeed is governed by the law of the nation of the
decedent.

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 law which governs Adoracion Campo's will is the law of

Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide for
legitimes and that all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law should not apply
because it would be contrary to the sound and established public policy and
would run counter to the specific provisions of Philippine Law.

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 latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.

It is a settled rule that as regards the intrinsic validity of the

provisions of the will, as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the decedent must apply.
This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
wherein we ruled:
It is therefore evident that whatever public policy or good customs
may be involved in our system of legitimes, Congress has not
intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific provisions must
prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and under the law of Texas, there are no forced heirs
or legitimes. Accordingly, since the intrinsic validity of the provision
of the will and the amount of successional rights are to be
determined under Texas law, the Philippine Law on legitimes
cannot be applied to the testacy of Amos G. Bellis.
F.

SOLEMNITIES OF WILLS

a.

General requirements

Art. 804. Every will must be in writing and executed in a language or

dialect known to the testator. (n)
b.

Specific requirements

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.

If the attestation clause is in a language not known

to the witnesses, it shall be interpreted to them.
(n)
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. (n)

SONOZA VS HONRADO
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 a forged will because she and the attesting witnesses did not
appear before the notary as admitted by the notary himself?
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 CAG.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5
years old when Mauro married Marcelina in 1923).

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).
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.SP08654-R). Marilyn used the surname Suroza. She stayed with
Marcelina but was not legally adopted by Agapito.
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. 3839, CA Rollo). In that wig, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix.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.
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.
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 .
RULING:

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.
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.
GARCIA VS LACUESTA 90 PHIL 489
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.

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.
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.
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.
BALONAN VS ABELLANA 109 PHIL 358
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)

Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law

prescribing the manner in which a will shall be executed?
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 witness in the presence of the testator and of
one another. (Emphasis supplied.)

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).
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.
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.

NERA VS RIMANDO 18 PHIL 450

The appeal squarely presents the following issue: Does the signature of Dr.
Juan A. Abello above the typewritten statement "Por la Testadora Anacleta

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 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
(In the case of Jaboneta vs Gustilo:
The purpose of a statutory requirement that the witness sign in the
presence of the testator is said to be that the testator may have ocular
evidence of the identity of the instrument subscribed by the witness and
himself, and the generally accepted tests of presence are vision and mental
apprehension.
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is
sufficient if the witnesses are together for the purpose of
witnessing the execution of the will, and in a position to actually
see the testator write, if they choose to do so; and there are many
cases which lay down the rule that the true test of vision is not whether the
testator actually saw the witness sign, but whether he might have seen him
sign, considering his mental and physical condition and position at the time
of the subscription.)

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.

TABOADA VS ROSAL 118 SCRA 195

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.
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.
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.
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 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 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.

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).
In Singson vs Florentino:
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.

We find the petition meritorious.

ICASIANO VS ICASIANO 11SCRA 422

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.

The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the
testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by attorney Fermin Samson,
who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

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.

10

The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose
V. Natividad, on page three (3) thereof; but the duplicate copy attached to
the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses in each and every
page.
On the question of law, we hold that the inadvertent failure of one witness
to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page is assured not
only 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 full 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".
CAGRO VS CAGRO 92 PHIL 1032
The main objection insisted upon by the appellant in that the will is fatally
defective, because its attestation clause is not signed by the attesting
witnesses. There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is 'a memorandum of the facts attending the
execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom thereof
negates their participation.
If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add
such clause to a will on a subsequent occasion and in the absence
of the testator and any or all of the witnesses.
Bautista, Angelo, dissenting:

This objection is too technical to be entertained. In the case of Abangan vs.

Abangan, (40 Phil., 476), this court said that when the testamentary
dispositions "are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant
case),their signatures on the left margin of said sheet would be
completely purposeless." In such a case, the court said, the requirement
of the signatures on the left hand margin was not necessary because the
purpose of the law which is to avoid the substitution of any of the sheets
of the will, thereby changing the testator's dispositions has already been
accomplished. We may say the same thing in connection with the will under
consideration because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a
subsequent occasion and not at the uncontradicted testimony of said
witnesses to the effect that such attestation clause was already
written in the will when the same was signed.
CRUZ VS VILLASOR 54 SCRA 31
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.
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.
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.
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 then
he would be interested in 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.
To allow the notary public to act as third witness, or one of 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.

11

GABUCAN VS MANTA 95 SCRA 752

This case is about the dismissal of a petition for the probate of a
notarial will on the ground that it does not bear a thirty-centavo
documentary stamp.
The proceeding was dismissed because the requisite documentary stamp
was not affixed to the notarial acknowledgment in the will and, hence,
according to respondent Judge, it was not admissible in evidence, citing
section 238 of the Tax Code, now section 250 of the 1977 Tax Code, which
reads:
SEC. 238. Effect of failure to stamp taxable document. An instrument,
document, or paper which is required by law to be stamped and which has
been signed, issued, accepted, or transferred without being duly stamped,
shall not be recorded, nor shall it or any copy thereof or any record of
transfer of the same be admitted or used in evidence in any court until the
requisite stamp or stamps shall have been affixed thereto and cancelled.

Ledesma, sister and nearest surviving relative of said deceased, appealed

from the decision, insisting that the said exhibits were not executed in
conformity with law.
The issue was concentrated into three specific questions: (1) whether the
testament of 1950 was executed by the testatrix in the presence of
the instrumental witnesses; (2) whether the acknowledgment
clause was signed and the notarial seal affixed by the notary
without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us for
resolution.
1.

Our examination of the testimony on record discloses no grounds

for reversing the trial Court's rejection of the improbable story of
the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon
Tabiana, and his wife Gloria Montinola, who asserted under oath
that the testament was executed by testatrix and witnesses in the
presence of each other, at the house of the decedent on General
Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have
insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all
three witnesses could have easily repaired thither for the purpose.
Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the
word "testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what is
to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884).

2.

At any rate, as observed by the Court below, whether or

not the notary signed the certification of acknowledgment
in the presence of the testatrix and the witnesses, does
not affect the validity of the codicil. Unlike the Code of 1889
(Art. 699), the new Civil Code does not require that the
signing of the testator, witnesses and notary should be
accomplished in one single act. A comparison of Articles 805
and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is
thereafter required is that "every will must be
acknowledged before a notary public by the testator and
the witnesses" (Art. 806); i.e., that the latter should avow to
the certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary
disposition. The subsequent signing and sealing by the
notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the

No notary public or other officer authorized to administer oaths shall add

his jurat or acknowledgment to any document subject to documentary
stamp tax unless the proper documentary stamps are affixed thereto and
cancelled.
We hold that the lower court manifestly erred in declaring that, because no
documentary stamp was affixed to the will, there was "no will and
testament to probate" and, consequently, the alleged "action must of
necessity be dismissed".
What the probate court should have done was to require the petitioner or
proponent to affix the requisite thirty-centavo documentary stamp to the
notarial acknowledgment of the will which is the taxable portion of that
document.
That procedure may be implied from the provision of section 238
that the non-admissibility of the document, which does not bear
the requisite documentary stamp, subsists only "until the requisite
stamp or stamps shall have been affixed thereto and cancelled."
Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the
lack of the documentary stamp on a document does not invalidate
such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil.
195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403,
405-6.)
JAVELLANA VS LEDESMA 97 PHIL 258
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect.The contestant, Da. Matea

12

acknowledgment itself nor of the testamentary act. Hence

their separate execution out of the presence of the testatrix and
her witnesses cannot be said to violate the rule that testaments
should be completed without interruption. It is noteworthy that
Article 806 of the new Civil Code does not contain words
requiring that the testator and the witnesses should
acknowledge the testament on the same day or occasion
that it was executed.
CANEDA VS CA 222 SCRA 781
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.
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.
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.
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. 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. 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.
Under the third paragraph of Article 805, such a clause, the complete lack
of which would result in the invalidity of the will, should state (1) the
number of 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 attestation in the will of testator states:
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.
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 so-called liberal rule, the Court said in Gil vs. Murciano, "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

13

cannot be supplied except by evidence aliunde would result in the

invalidation of the attestation clause and ultimately, of the will itself.
CALDE VS CA June 27, 1994
The records show that decedent left behind nine thousand pesos
(P9,000.00) worth of property. She also left a Last Will and Testament, dated
October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both
documents contained the thumbmarks of decedent. They were also signed
by three (3) attesting witnesses each, and acknowledged before Tomas A.
Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt.
Province.
Nicasio Calde, the executor named in the will, filed a Petition for its
allowance before the RTC of Bontoc, Mt. Province, Br. 36. He died during the
pendency of the proceedings, and was duly substituted by petitioner.
Private respondents, relatives of decedent, opposed the Petitioner filed by
Calde, on the following grounds: that the will and codicil were written
in Ilocano, a dialect that decedent did not know; that decedent was
mentally incapacitated to execute the two documents because of
her advanced age, illness and deafness; that decedents
thumbmarks were procured through fraud and undue influence;
and that the codicil was not executed in accordance with law.

petitioners claim that both testamentary documents in question were

subscribed to in accordance with the provisions of Art. 805 of the Civil
Code.
Neither did respondent court err when it did not accord great
weight to the testimony of Judge Tomas A. Tolete. It is true that his
testimony contains a narration of how the two testamentary documents
were subscribed and attested to, starting from decedents thumbmarking
thereof, to the alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Toletes testimony
is there any kind of explanation for the different-colored
signatures on the testaments.
c.

Special requirements

Art. 807.

If the testator be deaf, or a deaf-mute, he must

personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and
communicate to him, in some practicable manner,
the contents thereof. (n)

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. (n)

On June 23, 1988, the trial court rendered judgment on the case, approving
and allowing decedents will and its codicil. The decision was appealed to
and reversed by the respondent Court of Appeals. It held:
. . . (T)he will and codicil could pass the safeguards under Article
805 of the New Civil Code but for one crucial factor of discrepancy
in the color of ink when the instrumental witnesses affixed their
respective signatures.
The question in the case at bench is one of fact: whether or not, based on
the evidence submitted, respondent appellate court erred in concluding
that both decedents Last Will and Testament, and its Codicil were
subscribed by the instrumental witnesses on separate occasions. As a
general rule, factual findings of the Court of Appeals are considered final
and conclusive, and cannot be reviewed on appeal to this court. In the
present instance, however, there is reason to make an exception to that
rule, since the finding of the respondent court is contrary to that of the trial
court.
In the case at bench, the autoptic preference (From the point of
view of the litigant party furnishing this source of belief, it may be
termed Autoptic Proference) contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the
respondent court, show in black and white or more accurately, in black
and blue that more than one pen was used by the signatories thereto.
Thus, it was not erroneous nor baseless for respondent court to disbelieve

GARCIA VS VASQUEZ 32 SCRA 489

Facts:
Two wills were executed, one during 1956, the other on 1960. Testatrix was
suffering from glaucoma when the subsequent 1960 will, consisting only of
one page to which the provisions were crammed, was executed. Oppositors
to the will alleged that the will was secured through fraud or undue
influence as when the testatrix condition may be considered as similar to
that of a blind man. Likewise, they seek to oust the special administratrix
for having conflict of interest for having previously bought the property of
the testatrix for only 30k when it was more that 300k in value.
Court held:
Testators condition is similar to that of a blind man thus under Art. 808, the
provisions of the will shouldve been read to her twice.

14

That the special administratrix is removed in so far as with respect to her

interest in the testamentary succession but doesnt invalidate the previous
sale of property between her and the testatrix.
d.
Art. 809.

Substantial compliance
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 805. (n)

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.

GIL VS MURCIANO 88 PHIL 260

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.

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:

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.

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.

In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the
following to say:

Segundo Error. Erro finalmente a legalizar el referido testamento. (HIJO

DE PUTA!!! DO I SPEAK SPANISH?! NO ME HABLE ESPAOL
ESE!!!)
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 affects
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 internal circumtantial 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

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.)
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

15

the defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas
L. Sioca, supra.)
CUEVAS VS ACHACOSO 88 PHIL 730
On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In
said will the deceased instituted as his heirs, Valentina Cuevas, his widow
and Rosario Asera Venzon, his daughter. He named therein his widow as
executrix of the will. On February 1, 1946, Valentina Cuevas filed a petition
for the probate of said will.
On May 10, 1946, one Pilar Achacoso filed an alternative petition for the
probate of a previous will executed by the deceased praying therein that, if
the will submitted by the widow be rejected, the other will be admitted to
probate in lieu thereof. In the previous will there are other heirs instituted,
among them petitioner Pilar Achacoso. Pilar Achacoso objected to the
probate of the second will executed by the deceased on October 10, 1945.
After due hearing, the court found that the latter will was executed in
accordance with law and ordered that it be admitted to probate. Pilar
Achacoso took the case to the Court of Appeals, but the latter certified it to
this Court on the ground that it involves purely questions of law.
The main error assigned refers to the alleged lack of attestation
clause in the will under consideration, or to the fact that, if there
is such attestation clause, the same has not been signed by the
instrumental witnesses, but by the testator himself, and it is
claimed that this defect has the effect of invalidating the will.
The will in question, after reciting in separate paragraphs, and under
correlative numbers, the provisions of the will, winds up with the following
clause:
IN WITNESS WHEREOF, I sign this testament or last will in the municipality
of Iba, Zambales, Philippines, this 10th day of October, 1945, in the
presence of the three witnesses, namely Dr. Nestorio Trinidad, Don
Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses to
my signing; this testament is written in three (3) sheets marked by letter
"A", "B" and "C" consecutively on top of each sheet and upon my request
and in my presence and also in the presence of each of the aforesaid
instrumental witnesses, they also signed this testament already reffered to.
I hereby manifest that every sheet of the aforesaid testament, on the lefthand margin as well as the testament itself have been signed by me as
also each of the witnesses has also signed in my presence and in the
presence of each other.
(Sgd.) JOSE VENZON

(Sgd.) NESTORIO TRINIDAD

(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
The clause above quoted is the attestation clause reffered to in the
law which, in our opinion, substantially complies with its
requirements. The only apparent anomaly we find is that it appears to be
an attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, as to affect the validity of the will, it
appearing that right under the signature of the testator, there appear the
signatures of the three instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario Razonado de
Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the
execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807,
809). An instrumental witness, therefore, does not merely attest to the
signature of the testator but also to the proper execution of the will. The
fact that the three instrumental witnesses have signed the will
immediately under the signature of the testator, shows that they
have in fact attested not only to the genuineness of his signature
but also to the due execution of the will as embodied in the
attestation clause.
As was said in one case, "the object of the solemnities surrounding
the execution of the 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 intrepreted in such a way as to attain this premordial
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."
e.

Witnesses to wills

1.

Who are competent

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 805 of this Code. (n)

Art. 821.
will:

The following are disqualified from being witnesses to a

1.

Any person not domiciled in the Philippines;

Witnesses:

16

2.

Those who have been convicted of falsification of

a document, perjury or false testimony. (n)

GONZALES VS CA 90 SCRA 183

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.

Art. 804.
2.

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.
CRUZ VS VILLASOR 54 SCRA 31
To allow the notary public to act as third witness, or one of 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.
f.

Holographic wills

1.

In general

Specific requirements

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. (678, 688a)

Art. 812.

In holographic wills, the dispositions of the testator

written below his signature must be dated and
signed by him in order to make them valid as
testamentary dispositions. (n)

Art. 813.

When a number of dispositions appearing in a

holographic will are signed without being dated,
and the last disposition has a signature and a date,
such date validates the dispositions preceding it,
whatever be the time of prior dispositions. (n)

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. (n)

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

Every will must be in writing and executed in a language

or dialect known to the testator. (n)

ROXAS VS DE JESUS 134 SCRA 245

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

17

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.

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 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:

In the name of God, Amen.

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.

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.
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.
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.
KALAW VS RELOVA 132 SCRA 237
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

The holographic Will reads in full as follows:

My Last will and Testament

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.
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."
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

18

mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,

person, without the express direction of the

testator, the will may still be established,
and the estate distributed in accordance
therewith, if its contents, and due execution,
and the fact of its unauthorized destruction,
cancellation, or obliteration are established
according to the Rules of Court. (n)
LIPANA VS LIPANA 70 PHIL 865

G.

REVOCATION OF WILLS

a.

When effected

Art. 828.

b.

Law governing revocation

Art. 829.

c.

A will may be revoked by the testator at any time

before his death. Any waiver or restriction of this right
is void. (737a)

A revocation done outside the Philippines, by a

person who does not have his domicile in this
country, is valid when it is done according to the
law of the place where the will was made, or
according to the law of the place in which the
testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)

Modes of revocation

Art. 830.

No will shall be revoked except in the following cases:

1. By implication of law; or
2.

By some will, codicil, or other writing

executed as provided in case of wills; or

3.

By burning, tearing, cancelling, or

obliterating the will with the intention of
revoking it, by the testator himself, or by
some other person in his presence, and
by his express direction. If burned, torn,
cancelled, or obliterated by some other

One Eliodora Lipana filed in the respondent court an application for the
probate of a will supposedly executed by the deceased, Manuela Lipana, a
carbon copy of which was attached to the application. Natividad Lipana
filed an opposition, and her "oposicion supletoria" she claimed that
evidence was unnecessary upon the facts alleged in the application, the
copy of the will attached thereto showing, in itself, that the will had not
been executed in accordance with law. The respondent court, after
inspecting the copy of the will, dismissed the application on the ground that
such copy could not be admitted to probate, it not having been signed by
the testatrix and the attesting witnesses at the end thereof and on the left
margin of each page. It is against this order of dismissal that the petition
for certiorari has been filed with this court.
There can be no doubt that the respondent court acted in excess of
its jurisdiction in rendering a judgment upon the merits of the case
without a previous hearing. The pronouncement made by the
respondent court that the will had not been executed in accordance with
law, is founded undoubtedly on the erroneous assumption that the
probate of the carbon copy of the will was being applied for. Such
copy was attached to the application merely to corroborate the
allegation as to the existence of its original and not to establish a
full compliance with the requirements of the law as to the
execution of the will. Such requirements are alleged in the application to
have been complied with and may be proved at the hearing.
It is apparent from the application that what is sought to be
admitted to probate is the original of the will. It is alleged therein
that the original was in the possession of a third person or that it was either
lost or destroyed by some person other than the testatrix. Under Section
623 of Act No. 190, if a will is shown to have been torn by some
other person without the express direction of the testator, it may
be admitted to probate, if its contents, due execution and its
unauthorized destruction are established by satisfactory evidence.
The applicant, therefore, was entitled to hearing to prove the due execution
of the original will and its loss or destruction, and the respondent court had
no statutory authority to dismiss the application without such hearing.
GAGO VS MAMUYAC 49 PHIL 902

19

The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac.
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.
Francisco Gago presented a petition for the probation of that will.
The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac.
After hearing all of the parties the petition for the probation of said will
was denied 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
to secure the probation of the said will of the 16th day of April, 1919.
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.

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.

MALOTO VS CA 153 SCRA 451

Held:

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 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 perish 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.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece
and nephews, the petitioners Aldina Maloto-Casiano and Constancio,
Maloto, and the private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4, 1963 an
intestate proceeding for the settlement of their aunt's estate.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to be the last will
and testament of Adriana.
Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer
formerly used by Atty. Hervas.
While Panfilo and Felino are still named as heirs in the said will, Aldina
and Constancio are bequeathed much bigger and more valuable shares
in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed.
The will likewise gives devises and legacies to other parties.
Significantly, the appellate court while finding as inconclusive the
matter on whether or not the document or papers allegedly burned by
the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon
instructions of the testatrix, was indeed the will, contradicted itself
and found that the will had been revoked.

20

The respondent court stated that the presence of animus

revocandi in the destruction of the will had, nevertheless, been
sufficiently proven.
The appellate court based its finding on the facts that:

The document was not in the two safes in Adriana's residence,

By the testatrix going to the residence of Atty. Hervas to retrieve a

copy of the will left in the latter's possession, and,

Her seeking the services of Atty. Palma in order to have a new will
drawn up

Held:

There is no doubt as to the testamentary capacity of the testatrix and

the due execution of the will. The heart of the case lies on the issue as
to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of
wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention
of revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in

this case, does not per se constitute an effective revocation,
unless the destruction is coupled with animus revocandi on the
part of the testator.
It is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but
under the express direction and in the presence of the
testator. Of course, it goes without saying that the document
destroyed must be the will itself.
Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention
to revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out

by the testator or by another person in his presence and under

his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For
another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her
presence. Both witnesses, Guadalupe and Eladio, were one in stating
that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered
as a will were burned.
At this juncture, we reiterate that "(it) is an important matter
of public interest that a purported win is not denied
legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its
very foundations ...."
d.

Doctrine of dependent relative revocation

MOLO VS MOLO 90 PHIL 37

FACTS:

Mariano Molo died on January 24, 1941 without leaving any forced heir
either in the descending or ascending line.

His wife Juana Molo (petitioner) survived him, and by his nieces and
nephew Luz, Gliceria and Cornelio, all surnamed Molo (oppositorsappellants).

Oppositors appellants were the legitimate children of a deceased

brother of the testator.

Mariano left two wills, one executed on August 17, 1918 and another
executed on June 20, 1939,

In both the 1918 and 1939 wills Juana was instituted as his universal
heir.

The latter will contains a clause, which expressly revokes the will
executed in 1918.

Juana Molo filed in the CFI a petition seeking the probate of the will
executed in 1939.

The court rendered a decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was executed
in accordance with law.

In view of the disallowance of the will, the widow filed another petition
for the probate of the will executed by the deceased on August 18,
1918.

The oppositors filed an opposition to the petition contending that,

notwithstanding the disallowance of the 1939 will, the revocatory
clause is valid and still has the effect of nullifying the prior will of 1918.

21

Likewise, regardless of the revocatory clause, said will of 1918 cannot

still be given effect because of the presumption that the testator
himself deliberately revoked it.
The will of 1918 was admitted to probate.
Hence this appeal.

ISSUE:
Was the admittance into probate proper?

that the revoking will was valid. The conditioned was not fulfilled; therefore,
the revocation by overt act did not really materialize.
H.

INSTITUTION OF HEIRS

a.

Definition

Art. 840.

What is the doctrine of dependent relative revocation?

HELD:
A subsequent will containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed in
conformity with the provisions of law as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch
as said revocatory clause is void.
The doctrine of dependent relative revocation is usually applied
where the testator cancels or destroys a will or executed an
instrument intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for the old,
and the new disposition is not made or, if made, fails to effect for
same reason.
The failure of the new testamentary disposition, upon whose
validity the revocation depends, is equivalent to the nonfulfillment of a suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to make at some time
a will in place of that destroyed will does not render the destruction
conditional. It must appear that the revocation is dependent upon
the valid execution of a new will.
Even in the supposition that the destruction of the original will by the
testator could be presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of defeating the prior will
of 1918 because of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and would be given
due effect.
The theory on which the principle of dependent relative revocation is
predicated on that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on different
occasions and instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
Doctrine of dependent relative revocation the revocation by
destruction or overt act was good only if this condition is fulfilled, namely,

b.

Institution of heir is an act by virtue of which a testator

designates in his will the person or persons who
are to succeed him in his property and transmissible
rights and obligations. (n)

If will institutes no heirs

Art. 841.

A will shall be valid even though it should not

contain an institution of an heir, or such institution
should not comprise the entire estate, and even
though the person so instituted should not accept
the inheritance or should be incapacitated to
succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)

c.

Manner of designation of heir

Art. 843.

The testator shall designate the heir by his name and

surname, and when there are two persons having
the same names, he shall indicate some
circumstance by which the instituted heir may be
known.
Even though the testator may have omitted the
name of the heir, should he designate him in such
manner that there can be no doubt as to who has
been instituted, the institution shall be valid. (772)

Cross-reference:
Art. 789.

When there is an imperfect description, or when no

person
or
property
exactly
answers
the
description, mistakes and omissions must be
corrected, if the error appears from the context of
the will or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention; and when
an uncertainty arises upon the face of the will, as to
the application of any of its provisions, the testator's
intention is to be ascertained from the words of
the
will,
taking
into
consideration
the

22

circumstances under which it was made, excluding such

oral declarations. (n)

4.

Fideicommissary

Art. 863.
I.

SUBSTITUTION OF HEIRS

a.

Concept

Art. 857.

Substitution is the appointment of another heir so

that he may enter into the inheritance in default of the
heir originally instituted. (n)

Art. 858.

Substitution of heirs may be:

1.

1.

Simple or common;

2.

Brief or compendious;

3.

Reciprocal; or

4.

Fideicommissary. (n)

The testator may designate one or more persons to

substitute the heir or heirs instituted in case such heir
or heirs should die before him, or should not wish,
or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided. (774)

2.

Art. 865.
Every fideicommissary substitution must be expressly
made in order that it may be valid.
The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other
deductions than those which arise from legitimate
expenses, credits and improvements, save in the case
where the testator has provided otherwise. (783)
Art. 866.

The second heir shall acquire a right to the succession

from the time of the testator's death, even though he
should die before the fiduciary. The right of the
second heir shall pass to his heirs. (784)

Art. 867.

The following shall not take effect:

1.

Fideicommissary substitutions which are not

made in an express manner, either by giving
them this name, or imposing upon the fiduciary
the absolute obligation to deliver the property
to a second heir;

2.

Provisions
which
contain
a
perpetual
prohibition to alienate, and even a temporary one,
beyond the limit fixed in article 863;

3.

Those which impose upon the heir the charge of

paying to various persons successively, beyond
the limit prescribed in article 863, a certain income
or pension;

4.

Those which leave to a person the whole part

of the hereditary property in order that he may

Brief or compendious

Art. 860.
3.

Art. 864.
A fideicommissary substitution can never burden the
legitime. (782a)

Simple substitution

Art. 859.

A fideicommissary substitution by virtue of which the

fiduciary or first heir instituted is entrusted with
the obligation to preserve and to transmit to a
second heir the whole or part of the inheritance,
shall be valid and shall take effect, provided such
substitution does not go beyond one degree from
the heir originally instituted, and provided further,
that the fiduciary or first heir and the second heir
are living at the time of the death of the testator.
(781a)

Two or more persons may be substituted for one;

and one person for two or more heirs. (778)

Reciprocal

Art. 861.

If heirs instituted in unequal shares should be

reciprocally substituted, the substitute shall
acquire the share of the heir who dies, renounces,
or is incapacitated, unless it clearly appears that the
intention of the testator was otherwise. If there are more
than one substitute, they shall have the same share
in the substitution as in the institution. (779a)

23

apply or invest the same according to secret

instructions communicated to him by the
testator. (785a)
Art. 868.

The nullity of the fideicommissary substitution does not

prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall
simply be considered as not written. (786)

Art. 869.

A provision whereby the testator leaves to a person

the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but
successively, the provisions of Article 863 shall apply.
(787a)

Jorge and Roberto opposed the project of partition on the grounds: (a) that
the provisions for vulgar substitution in favor of Wanda de
Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's
usufruct are invalid because the first heirs Marcelle and Wanda)
survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not
related to the second heirs or substitutes within the first degree,
as provided in Article 863 of the Civil Code;
1.

2.

PCIB VS ESCOLIN 56 SCRA 266

The substitution provided for by paragraph four of the Will of Linnie Jane
Hodges is not fideicommissary substitution, because there is clearly no
obligation on the part of C. N. Hodges as the first heir designated, to
preserve the properties for the substitute heirs.
3.
RAMIREZ VS RAMIREZ 111 SCRA 704
The main issue in this appeal is the manner of partitioning the testate
estate of Jose Eugenio Ramirez among the principal beneficiaries,
namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion
Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French
who lives in Paris, while the companion Wanda is an Austrian who
lives in Spain. Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December
11, 1964, with only his widow as compulsory heir. His will was
admitted to probate by the Court of First Instance of Manila, Branch
X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate.
On June 23, 1966, the administratrix submitted a project of partition
as follows: the property of the deceased is to be divided into two parts.
One part shall go to the widow 'en pleno dominio" in satisfaction of
her legitime; the other part or "free portion" shall go to Jorge and
Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of
the free portion is charged with the widow's usufruct and the
remaining two-thirds (2/3) with a usufruct in favor of Wanda.

4.

The appellant's do not question the legality of giving Marcelle

one-half of the estate in full ownership. They admit that the
testator's dispositions impaired his widow's legitime. Indeed, under Art.
900 of the Civil Code "If the only survivor is the widow or widower, she
or he shall be entitled to one-half of the hereditary estate."
It is the one-third usufruct over the free portion which the
appellants question and justifiably so. It appears that the court
a quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of
the estate. To give Marcelle more than her legitime will run counter to
the testator's intention for as stated above his dispositions even
impaired her legitime and tended to favor Wanda.
They allege that the substitution in its vulgar aspect as void because
Wanda survived the testator or stated differently because she did not
predecease the testator. But dying before the testator is not the
only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of
the Civil Code, supra. Hence, the vulgar substitution is valid.
The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not
related to Wanda, the heir originally instituted. Art. 863 of the Civil
Code validates a fideicommissary substitution "provided such
substitution does not go beyond one degree from the heir originally
instituted."
What is meant by "one degree" from the first heir is explained by
Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view, there can
be only one tranmission or substitution, and the substitute need not be
related to the first heir. Manresa, Morell and Sanchez Roman, however,
construe the word "degree" as generation, and the present Code has
obviously followed this interpretation. by providing that the
substitution shall not go beyond one degree "from the heir originally
instituted." The Code thus clearly indicates that the second heir must
be related to and be one generation from the first heir.

24

From this, it follows that the fideicommissary can only be

either a child or a parent of the first heir. These are the only
relatives who are one generation or degree from the fiduciary
(Op. cit., pp. 193-194.)
5.

There is no absolute duty imposed on Wanda to transmit the usufruct

to the substitutes as required by Arts. 865 and 867 of the Civil Code. In
fact, the appellee admits "that the testator contradicts the
establishment of a fideicommissary substitution when he permits the
properties subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and the naked owners." (Brief, p. 26.)

liquidated credit of Ana Maria Alcantara, deceased, whose heiress is

said plaintiff.
Mariano Garchitorena held a judgment for P7,872.23 against Joaquin
Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the
sheriff pursuant to the writ of execution issued in said judgment, levied
an attachment on said amount.
The plaintiff, alleging that said deposit belongs to the fideicommissary
heirs of the decedent Ana Maria Alcantara, secured a preliminary
injunction.
The defendants contend that the plaintiff is the decedent's universal
heiress, and pray for the dissolution of the injunction.

Issue: whether such deposit belongs to the fideicommissary heirs.

Ruling:
The clauses of said will relevant to the points in dispute, between the
parties are the ninth, tenth, and eleventh, quoted below:
Ninth. that she may enjoy them with God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that my
whole estate shall pass unimpaired to her surviving children; my
estate shall never pass out of the hands of my heiress or her
children in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die
after me while her children are still in their minority, I order that
my estate be administered by my executrix, Mrs. Josefa Laplana,
and in her default, by Attorney Ramon Salinas and in his default,
by his son Ramon Salinas;

The disposition contained in clause IX, that said heiress shall

receive and enjoy the estate, is not incompatible with a
fideicommissary substitution (it certainly is incompatible with
the idea of simple substitution, where the heiress instituted
does not receive the inheritance).
The illustrious Manresa, in his Civil Code (Vol. 6, pp. 142
and 143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary
substitution, as held in the Resolution of June 25, 1895,
February 10, 1899, and July 19, 1909, requires three
things:

PEREZ VS GARCHITORENA 54 PHIL 431

The amount of P21,428.58 is on deposit in the plaintiff's name with the

association known as La Urbana in Manila, as the final payment of the

1. A first heir called primarily to the enjoyment of the

estate.

25

2. An obligation clearly imposed upon him to preserve and

transmit to a third person the whole or a part of the
estate.
3. A second heir.
To these requisites, the decision of November 18, 1918
adds another, namely that the fideicommissarius be
entitled to the estate from the time the testator dies, since
he is to inherit from the latter and not from the fiduciary.
(Emphasis ours.)

It should also be noted that said clause IX vests in the heiress

only the right to enjoy but not the right to dispose of the
estate. It says, she may enjoy it, but does not say she may dispose of
it. This is an indication of the usufruct inherent in fideicommissary
substitution.

Another clear and outstanding indication of fideicommissary

substitution in clause X is the provision that the whole estate
shall pass unimpaired to the heiress's children, that is to say the
heiress is required to preserve the whole estate, without diminution, in
order to pass it on in due time to the fideicommissary heirs.

Lastly, clause XI more clearly indicates the idea of

fideicommissary substitution, when a provision is therein made
in the event the heiress should die after the testatrix. That is,
said clause anticipates the case where the instituted heiress
should die after the testatrix and after receiving and enjoying the
inheritance.
By virtue of this consequence, the inheritance in question does
not belong to the heiress instituted, the plaintiff herein, as her
absolute property, but to her children, from the moment of the
death of the testatrix, Ana Maria Alcantara.

It is clear that the particular testamentary clause under consideration

provides for a substitution of the heir named therein in this manner:
that upon the death of Consolacion Florentino whether this occurs
before or after that of the testatrix the property bequeathed to her
shall be delivered ("se dara") or shall belong in equal parts to the
testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced
heirs, should anyone of them die ahead of Consolacion Florentino.
A careful perusal of the testamentary clause under
consideration shows that the substitution of heirs provided for
therein is not expressly made of the fideicommissary kind, nor
does it contain a clear statement to the effect that appellee,
during her lifetime, shall only enjoy usufructuary rights over
the property bequeathed to her, naked ownership thereof being
vested in the brothers of the testatrix. As already stated, it merely
provides that upon appellee's death whether this happens before or
after that of the testatrix her share shall belong to the brothers of
the testatrix.
J.

LEGITIME

1.

CONCEPT

Art. 886.

2.

Legitime is that part of the testator's property which

he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called
compulsory heirs. (806)

Who are entitled

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 foregoing, legitimate parents and

ascendants, with respect to their legitimate
children and descendants;

3.

The widow or widower;

4.

Acknowledged natural children, and natural

children by legal fiction;

5.

Other illegitimate children referred to in Article

287.

CRISOLOGO VS SINGSON 49 SCRA 491

Action for partition commenced by the spouses Consolacion Florentino

and Francisco Crisologo against Manuel Singson in connection with a
residential lot located a Plaridel St., Vigan, Ilocos Sur.
Their complaint alleged that Singson owned one-half pro-indiviso of
said property and that Consolacion Florentino owned the other half by
virtue of the provisions of the duly probated last will of Da. Leona
Singson, the original owner.
Defendant's defense was that Consolacion Florentino was a mere
usufructuary of, and not owner of one-half pro-indiviso of the property
in question, and that, therefore, she was not entitled to demand
partition thereof.

Held:

26

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. (807a)
Art. 902.

The rights of illegitimate children set forth in the

preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate.
(843a)

ROSALES VS ROSALES 148 SCRA 69

Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was
survived by her husband Fortunate T. Rosales and their two (2) children
Magna Rosales Acebes and Antonio Rosales. Another child, Carterio
Rosales, predeceased her, leaving behind a child, Macikequerox
Rosales, and his widow Irenea C. Rosales, the herein petitioner.
Irenea Rosales insisted in getting a share of the estate in her
capacity as the surviving spouse of the late Carterio Rosales,
son of the deceased, claiming that she is a compulsory heir of her
mother-in-law together with her son, Macikequerox Rosales.

Is a widow (surviving spouse) an intestate heir of her mother-in-law?

Our answer to the first question is in the negative.

The surviving spouse is considered a third person as regards

the estate of the parent-in-law.

Intestate or legal heirs are classified into two (2) groups, namely, those
who inherit by their own right, and those who inherit by the right of
representation.

Restated, an intestate heir can only inherit either by his own right,
as in the order of intestate succession provided for in the Civil Code, or
by the right of representation provided for in Article 981 of the
same law.

Petitioner argues that she is a compulsory heir in accordance with the

provisions of Article 887 of the Civil Code. The aforesaid provision
of law refers to the estate of the deceased spouse in which
case the surviving spouse (widow or widower) is a compulsory
heir. It does not apply to the estate of a parent-in-law.

LAURO VIZCONDE VS CA

ISSUE:

HELD:

Article 971 explicitly declares that Macikequerox Rosales is

called to succession by law because of his blood relationship.
He does not succeed his father, Carterio Rosales (the person
represented) who predeceased his grandmother, Petra Rosales, but
the latter whom his father would have succeeded.
Petitioner cannot assert the same right of representation as
she has no filiation by blood with her mother-in-law.

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 Ricardo Nicolas, an incompetent. Antonio predeceased his parents
and is now survived by his widow, Zenaida, and their four children.
Estrellita purchased from Rafael a parcel of land with an area of 10,110
sq. m. located at Valenzuela, Bulacan. 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).
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. 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", with Rafael and
Salud, Estrellita's parents.
On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita
instituted an intestate estate proceeding. Teresita prayed to be
appointed Special Administratrix of Rafael's estate. Additionally, she

27

sought to be appointed as guardian ad litem of Salud, now senile, and

Ricardo, her incompetent brother.
Herein private respondent Ramon filed an opposition dated March 24,
1993, praying to be appointed instead as Salud and Ricardo's guardian.
Barely three weeks passed, Ramon filed another opposition 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.
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. Ramon stated that herein petitioner is
one of Rafael's children "by right of representation as the widower of
deceased legitimate daughter of Estrellita." 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.

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. 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.

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. 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.

Issue:
Whether or not the transfer of the Valenzuela property from Rafael to
Estrellita and declaring the Paraaque property as subject to collation is
valid.
Held:

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. 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.

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. Petitioner, a son-in-law of Rafael, is
not one of Rafael's compulsory heirs.

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. Such determination is
provisional in character and is subject to final decision in a separate
action to resolve title.

BARITUA VS CA 183 SCRA 565

In the evening of November 7, 1979, the tricycle then being driven by

Bienvenido Nacario along the national highway at Barangay San
Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus
No. 80 driven by petitioner Edgar Bitancor and owned and operated by
petitioner Jose Baritua. As a result of that accident Bienvenido and his
passenger died and the tricycle was damaged. No criminal case arising
from the incident was ever instituted.

Subsequently, on March 27, 1980, as a consequence of the

extra-judicial settlement of the matter negotiated by the
petitioners and the bus insurer Philippine First Insurance
Company, Incorporated (PFICI for brevity) Bienvenido
Nacario's widow, Alicia Baracena Vda. de Nacario, received
P18,500.00. In consideration of the amount she received, Alicia
executed on March 27, 1980 a "Release of Claim" in favor of the
petitioners and PFICI.

On September 2, 1981, or about one year and ten months from

the date of the accident on November 7, 1979, the private
respondents, who are the parents of Bienvenido Nacario, filed
a complaint for damages against the petitioners with the then
Court of First Instance of Camarines Sur. The Nacario spouses
prayed that the defendants, petitioners herein, be ordered to indemnify
them in the amount of P25,000.00 for the death of their son
Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for

28

compensatory and exemplary damages, P5,000.00 for attorney's fees,

and for moral damages.

Insofar as they may be inofficious or may exceed the

disposable portion, they shall be reduced according
to the rules established by this Code. (819a)

ISSUE:
Whether or not the respondent appellate court erred in holding that the
petitioners are still liable to pay the private respondents the aggregate
amount of P20,505.00 despite the agreement of extrajudicial settlement
between the petitioners and the victim's compulsory heirs.

Art. 910.

Should they exceed the portion that can be freely

disposed of, they shall be reduced in the manner
prescribed by this Code. (847a)

HELD:

Article 1240 of the Civil Code of the Philippines enumerates the

persons to whom payment to extinguish an obligation should be made.
Art 1240.

Certainly there can be no question that Alicia and her son with
the deceased are the successors in interest referred to in law
as the persons authorized to receive payment.

It is patently clear that the parents of the deceased succeed

only when the latter dies without a legitimate descendant. On
the other hand, the surviving spouse concurs with all classes of heirs.
This is so even if Alicia had been estranged from Bienvenido. Mere
estrangement is not a legal ground for the disqualification of a
surviving spouse as an heir of the deceased spouse.
3.

Art. 911.

Payment shall be made to the person in whose

favor the obligation has been constituted, or his
successor in interest, or any person authorized
to receive it.

1.

Donations shall be respected as long as the

legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;

2.

The reduction of the devises or legacies shall

be pro rata, without any distinction whatever.

3.

To determine the legitime, the value of the property

left at the death of the testator shall be considered,
deducting all debts and charges, which shall not
include those imposed in the will.
Art. 912.

If the devise or legacy consists of a usufruct or

life annuity, whose value may be considered
greater than that of the disposable portion, the
compulsory
heirs
may
choose
between
complying with the testamentary provision and
delivering to the devisee or legatee the part of
the inheritance of which the testator could freely
dispose. (820a)

Donations given to children shall be charged to their

If the devise subject to reduction should consist of

real property, which cannot be conveniently
divided, it shall go to the devisee if the reduction does
not absorb one-half of its value; and in a contrary
case, to the compulsory heirs; but the former and
the latter shall reimburse each other in cash for what
respectively belongs to them.

Donations made to strangers shall be charged to that

part of the estate of which the testator could have
disposed by his last will.

The devisee who is entitled to a legitime may retain

the entire property, provided its value does not
exceed that of the disposable portion and of the
share pertaining to him as legitime. (821)

To the net value of the hereditary estate, shall be

added the value of all donations by the testator that
are subject to collation, at the time he made them.
(818a)
Art. 909.
legitime.

After the legitime has been determined in

accordance with the three preceding articles, the
reduction shall be made as follows:

If the testator has directed that a certain devise

or legacy be paid in preference to others, it
shall not suffer any reduction until the latter have
been applied in full to the payment of the legitime.

Determination or computation

Art. 908.

Donations which an illegitimate child may have

received during the lifetime of his father or mother, shall
be charged to his legitime.

29

Art. 913.

If the heirs or devisees do not choose to avail

themselves of the right granted by the preceding
article, any heir or devisee who did not have such
right may exercise it; should the latter not make use
of it, the property shall be sold at public auction at
the instance of any one of the interested parties. (822)

LOCSIN VS CA 206 SCRA 383

Mariano Locsin executed a Last Will and Testament instituting his wife,
Catalina, as the sole and universal heir of all his properties. The
spouses being childless, had agreed that their properties, after both of
them shall have died should revert to their respective sides of the
family, i.e., Mariano's properties would go to his "Locsin relatives" (i.e.,
brothers and sisters or nephews and nieces), and those of Catalina to
her "Jaucian relatives."
Don Mariano relied on Doa Catalina to carry out the terms of their
compact, hence, nine (9) years after his death, Doa Catalina began
transferring, by sale, donation or assignment, Don Mariano's as well as
her own, properties to their respective nephews and nieces. She made
the sales and donation of properties which she had received from her
husband's estate, to his Locsin nephews and nieces.
In 1989, or six (6) years after Doa Catalina's demise, some of her
Jaucian nephews and nieces who had already received their legacies
and hereditary shares from her estate, filed action in the Regional Trial
Court of Legaspi City to recover the properties which she had conveyed
to the Locsins during her lifetime, alleging that the conveyances were
inofficious, without consideration, and intended solely to circumvent
the laws on succession. Those who were closest to Doa Catalina did
not join the action.

ISSUE:

The rights to a person's succession are transmitted from the moment

of his death, and do not vest in his heirs until such time.
Property which Doa Catalina had transferred or conveyed to
other persons during her lifetime no longer formed part of her
estate at the time of her death to which her heirs may lay
claim. Had she died intestate, only the property that remained in her
estate at the time of her death devolved to her legal heirs;
Even if those transfers were, one and all, treated as donations, the
right arising under certain circumstances to impugn and
compel the reduction or revocation of a decedent's gifts inter
vivos does not inure to the respondents since neither they nor
the donees are compulsory (or forced) heirs.
Said respondents are not her compulsory heirs, and it is not
pretended that she had any such, hence there were no
legitimes that could conceivably be impaired by any transfer of
her property during her lifetime. All that the respondents had was
an expectancy that in nowise restricted her freedom to dispose of even
her entire estate subject only to the limitation set forth in Art. 750, Civil
Code which, even if it were breached, the respondents may not invoke:
Art. 750. The donation may comprehend all the present
property of the donor or part thereof, provided he reserves, in
full ownership or in usufruct, sufficient means for the support of
himself, and of all relatives who, at the time of the acceptance of
the donation, are by law entitled to be supported by the donor.
Without such reservation, the donation shall be reduced on
petition of any person affected. (634a)
4. Freedom to dispose free portion

Art. 914.
The testator may devise and bequeath the free portion as
he may deem fit. (n)
K. Preterition of Compulsory Heirs
Art. 854.

Whether or not the nephews and nieces of Doa Catalina J. Vda. de Locsin,
are entitled to inherit the properties which she had already disposed of
more than ten (10) years before her death.
HELD:

They are not entitled since those properties did not form part
of her hereditary estate, i.e., "the property and transmissible rights
and obligations existing at the time of (the decedent's) death and
those which have accrued thereto since the opening of the
succession."

The preterition or omission of one, some, or all of the

compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after
the death of the testator, shall annul the institution
of heir; but the devises and legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should die before
the testator, the institution shall be effectual,
without prejudice to the right of representation. (814a)

Art. 906.

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. (815)

30

Art. 855.

The share of a child or descendant omitted in a will

must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient,
so much as may be necessary must be taken
proportionally from the shares of the other
compulsory heirs. (1080a)

Art. 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
devises and legacies and other testamentary
dispositions shall be valid to such extent as will not
impair the legitime. (851a)

AZNAR VS DUNCAN 17 SCRA 590

Edward E. Christensen, a citizen of California with domicile in the

Philippines, died leaving a will which was admitted to probate.
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 Court of First Instance of Davao issued an order approving the
project of partition submitted by the executor, wherein the properties
of the estate were divided equally between Lucy Duncan, whom the
testator had expressly recognized in his will as his daughter 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.

Issue:
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.
Held:

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 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 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 which shall not
include those imposed in the will of the decedent, in accordance with
Article 908 of the Civil Code.

NUGUID VS NUGUID 17 SCRA 449

Rosario Nuguid, died on December 30, 1962, single, without

descendants, legitimate or illegitimate. Surviving her were her
legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6)
brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First
Instance of Rizal a holographic will allegedly executed by Rosario
Nuguid. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.
Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition
to the probate of her will on the grounds that being compulsory heirs
of the deceased in the direct ascending line, they were illegally
preterited and that in consequence the institution is void.

Issue:
Is the holographic will valid insofar as it preterited the compulsory heirs of
the decedent?

31

Held:
Art. 854 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. ...

The deceased Rosario Nuguid left no descendants, legitimate or

illegitimate. But she left forced heirs in the direct ascending line her
parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the
will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of
preterition.
Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would
give the heir so instituted a share in the inheritance. As to him,
the will is inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. As aforesaid, there is no
other provision in the will before us except the institution of petitioner
as universal heir. That institution, by itself, is null and void. And,
intestate succession ensues.
The will here does not explicitly disinherit the testatrix's
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition. On top of this is the fact that the effects
flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we
repeat, "shall annul the institution of heir".
Article 854 of the Civil Code in turn merely nullifies "the institution of
heir". Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null.

REYES VS BARRETO-DATU 19 SCRA 85

Bibiano Barretto was married to Maria Gerardo. During their lifetime

they acquired a vast estate.
When Bibiano Barretto died, he left his share of these properties in a
will to Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and to his widow, Maria Gerardo.
When Maria Gerardo died, it was discovered that she had executed two
wills, in the first of which, she instituted Salud and Milagros, both

surnamed Barretto, as her heirs; and, in the second, she revoked the
same and left all her properties in favor of Milagros Barretto alone.
Thus, the later will was allowed and the first rejected.
The lower court held that Salud was not the daughter of the decedent
Maria Gerardo by her husband Bibiano Barretto. This ruling was
appealed to the Supreme Court, which affirmed the same.
The nullity of the project of partition was decreed on the basis of Article
1081 of the Civil Code of 1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir,
without being so, has been included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs
that since Bibiano Barretto was free to dispose of one-third (1/3) of his
estate under the old Civil Code, his will was valid in favor of Salud
Barretto (nee Lim Boco) to the extent, at least, of such free part.
And it concluded that, as defendant Milagros was the only true heir of
Bibiano Barretto, she was entitled to recover from Salud, and from the
latter's children and successors, all the Properties received by her
from Bibiano's estate, in view of the provisions of Article 1456
of the new Civil Code of the Philippines establishing that
property acquired by fraud or mistake is held by its acquirer in
implied trust for the real owner.

Held:

The legal precept (Article 1081) does not speak of children, or

descendants, but of heirs (without distinction between forced,
voluntary or intestate ones), and the fact that Salud happened not
to be a daughter of the testator does not preclude her being one of the
heirs expressly named in his testament; for Bibiano Barretto was at
liberty to assign the free portion of his estate to whomsoever he chose.
Nor does the fact that Milagros was allotted in her father's will
a share smaller than her legitime invalidate the institution of
Salud as heir, since there was here no preterition, or total
ommission of a forced heir.

ESCUIN VS ESCUIN 11 PHIL 332

Emilio Antonio Escuin de los Santos executed a will and stated in clause
three of his will, that in case he has a duly registered successor, his child
would be his sole and universal heir; but that if, as would probably be the
case, there should be no such heir, then in clause four he named his said
father Francisco Escuin, and his wife Maria Teresa Ponce de Leon and his
universal heirs, they to divide the estate in equal shares between them. His
natural son was preterited;
Is the will valid?

32

As has been seen, the testator wish to dispose his property in his will,
designating as heirs his natural father, Francisco Escuin, and his wife,
Maria Teresa Ponce de Leon, all together ignoring his recognized
natural child who is general heir. In view thereof, and for the
reason that he exceeded his rights, the said designation of
heirs became void and so far as it impaired the right of his
general heir and deprived him of his legal portions; the will,
however, is valid with respect to the two-thirds of the property
which the testator freely disposed of.
Notwithstanding the fact that the said designation of heirs annulled
and that the law recognizes the title of the minor, Escuin y Batac, to
one-third of the property of his natural father, as his lawful and general
heir, it is not proper to assert that the late Emilio Escuin de los
Santos died intestate since it is clear and unquestionable that
it was the wish of the testator to favor his natural father and
his wife with certain portions of his property which, under the
law, he had the right to dispose of by will, as he has done, provided
the legal portion of his general heir was not thereby impaired, the two
former persons being considered as legatees under the will.

Said decision of the Court of First Instance of Nueva Ecija was, on

appeal, affirmed by this Court.
When Rafael Viola filed the report required in this order, Donato
Lajom noticed that nothing was said in the aforementioned report
concerning the fruits of a riceland, with an area of 215 hectares,
allegedly donated by Dr. Maximo Viola to said Rafael Viola. So, Lajom
asked that Rafael Viola be ordered to include the products of said
riceland in his report, in order that the property may be included in
the redistribution of the Viola Estate.
Rafael Viola objected thereto upon the ground that said property was
not "mentioned or included in the complaint filed in this case." The
objection was sustained and the petition was denied.

Issue:
1. Whether other properties should be collated or not open for future
determination.
2.

Petitioner having been the victim of preterition, the institution of heirs

made by the deceased Dr. Maximo Viola became ineffective, and that
Civil Case No. 8077 was thereby converted into an intestate
proceedings for the settlement of his estate.

Held:
1. In any event, respondent Judge was merely enforcing a decision that
had already become final. Any order directing what was not
required in said decision and the same contained no
pronouncement with respect to the riceland adverted to above
would be in excess of his jurisdiction and therefore, null and
void.
2.

LAJOM VS LEUTERIO (GR NO. L-13557)

Maximo Viola died on September 3, 1933. Judicial proceedings of his

testate estate were instituted in the Court of First Instance.
An agreement of partition and distribution was executed by and
between Jose P. Viola, Rafael Viola and Silvio Viola, legitimate children
of Maximo Viola and Juana Toura, whereby the properties left by their
father, Maximo Viola, were divided among themselves.
Donato Lajom filed in the Court of First Instance a complaint praying,
among other things, that he be declared a natural child of Maximo
Viola, impliedly recognized and acknowledged in accordance with the
laws in force prior to the Civil Code, thereby being a co-heir of Jose P.
Viola, Rafael Viola and Silvio Viola; that the agreement of partition and
distribution executed in 1935 by these three legitimate children of
Maximo Viola be declaired null and void.

This contention is clearly untenable. There might have been merit

therein if we were dealing with a special proceedings for the
settlement of the testate estate of a deceased person, which, in
consequence of said preterition, would thereby acquire the character
of a proceeding for the settlement of an intestate estate, with
jurisdiction over any and all properties of the deceased. But, Civil
Case No. 8077 is an ordinary civil action, and the authority of
the court having jurisdiction over the same is limited to the
properties described in the pleadings, which admittedly do not
include the aforementioned riceland.

BALANAY VS MARTINEZ 64 SCRA 452

33

In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his hereditary rights.
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.

HELD:

HELD:

The probate of a will might become an idle ceremony if on its

face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue
The rule is that "the invalidity of one of several dispositions contained
in a will does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code). "Where some of the provisions of a
will are valid and others invalid, the valid parts will be upheld
if they can be separated from the invalid without defeating
the intention of the testator or interfering with the general
testamentary scheme, or doing injustice to the beneficiaries"
(95 C.J.S. 873).
To give effect to the intention and wishes of the testatrix is the first
and principal law in the matter of testaments. Testacy is preferable
to intestacy. An interpretation that will render a testamentary
disposition operative takes precedence over a construction
that will nullify a provision of the will (Arts. 788 and 791, Civil
Code).

ACAIN VS CA (155 SCRA 100)

SOLANO VS CA 136 SCRA 122

Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be

illegitimate children of Dr. Meliton SOLANO, filed an action for
recognition against him. In his Answer, SOLANO denied paternity.
During the pendency of the suit, SOLANO died.
Petitioner ZONIA Ana Solano was ordered substituted for the
DECEDENT as the only surviving heir mentioned in his Last Will and
Testament.

Held:

The GARCIAS impugned the recognition of ZONIA as an acknowledged

natural child with the prayer that she be declared instead, like them,
as an adulterous child of the DECEDENT.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the
judgment in declaring all of them as Adulterous Children.

ISSUE:
Is the will valid?

The Will, therefore, is valid subject to that limitation. It is a plain

that the intention of the testator was to favor ZONIA with
certain portions of his property, which, under the law, he had
a right to dispose of by Will, so that the disposition in her favor
should be upheld as to the one-half (1/2) portion of the property
that the testator could freely dispose of.
The case of Nuguid vs. Nuguid, et al., reiterating the ruling in Neri,
et al. vs. Akutin, et al., which held that where the institution of
a universal heir is null and void due to pretention, the Will is a
complete nullity and intestate succession ensues, is not
applicable herein because in the Nuguid case, only a onesentence Will was involved with no other provision except the
institution of the sole and universal heir; there was no
specification of individual property; there were no specific legacies or
bequests.
In contrast, in the case at bar, there is a specific bequest or legacy so
that Article 854 of the Civil Code, supra, applies merely annulling the
"institution of heir".

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 oppositors, respondents herein Virginia A. Fernandez, a legally
adopted daughter of the deceased and the latter's Widow Rosa
Diongson Vda. de Acain, filed a motion to dismiss on the following
grounds (1) 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. Said motion was denied
by the trial judge.

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.
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)

34

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. 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.
Pretention annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance. 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.

K.

RESERVA TRONCAL

1.

Concept

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. (871)

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.

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.

EDROSO VS SABLAN (25 PHIL 295)

Marcelina Edroso was married to Victoriano Sablan until his death. In

this marriage they had a son named Pedro, who at his father's death
inherited the two said parcels. Pedro also died, 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 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."
Other issue: 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.

SIENES VS ESPACIA 1 SCRA 750

Francisco inherited a parcel of land from his father.

Francisco died, single and without issue.
His mother, Andrea Gutang inherited such land from Francisco, who
later sold it to Constancio Sienes.
Thereafter, the sisters Paulina and Cipriana Yaeso (the Original TCT in
their possession), half-sisters of Francisco, sold the land in favor of the
spouses Fidel Esparcia and Paulina Sienes.
Andrea Gutang died on December 13, 1951 and the lone reservee
surviving her being Cipriana Yaeso who died only on January 13, 1952.

Issue:
Whose sale was valid and should be upheld?

Held:

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.
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.

Held:
Marcelina Edroso, ascendant of Pedro Sablan, inherited from him
these two parcels of land which he had acquired without a valuable

The land in question was reservable property.

35

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.
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.
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.

CHUA VS CFI (78 SCRA 412)

FLORENTINO VS FLORENTINO 40 PHIL 480

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. And within the third degree
of relationship from the descendant (prepositus), the right of
representation operates in favor of nephews.
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. ... .

where the reservatario was survived by eleven nephews and nieces of

the praepositus 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.

Jose Frias Chua, on his first marriage sired 3 children, Ignacio, Lorenzo
and Manuel.
When his wife died, he contracted a second marriage with Consolacion
de la Torre with whom he had a child by the name of Juanito Frias
Chua.
Manuel predeceased his father, having no heirs.
When Jose Frias Chua died, he left no will, and has his widow,
Consolacion, and children Juanito, Lorenzo, and Ignacio as heirs.
Juanito Frias Chua of the second marriage died intestate without any
issue.
Consolacion de la Torre died intestate leaving no direct heir either in
the descending or ascending line except her brother and sisters.
Lorenzo and Ignacio filed a complaint to declare as reservable
property the portion of a lot that Consolacion received from Juanito
upon his death.

Held:

In order that a property may be impressed with a reservable character

the following requisites must exist, to wit:
1.
2.
3.

PADUARA VS BALDOVINO (L-11960, DEC. 27, 1958)

As to the reservable property, the reservatarios do not inherit from the

reservista, but from the descendant praepositus.
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.
The only difference in their right of succession is provided in Art.
1008, NCC in relation to Article 1006 of the New Civil Code (supra),
which provisions, in effect, entitle the sole niece of full blood to a
share double that of the nephews and nieces of half blood. Such
distinction between whole and half blood relationships with the
deceased has been recognized in Dionisia Padura, et al. vs. Melanie
Baldovino, et al., No. L-11960, December 27, 1958, 104 Phil. 1065

4.

that the property was acquired by a descendant from an

asscendant or from a brother or sister by gratuitous title;
that said descendant died without an issue;
that the property is inherited by another ascendant by
operation of law; and
that there are relatives within the third degree belonging to
the line from which said property came.

Juanito Frias Chua who died intestate had relatives within the third
degree. These relatives are Ignacio Frias Chua and Dominador Chua
and Remidios Chua, the suppose legitimate children of the deceased
Lorenzo Frias Chua, who are the petitioners herein.

36

As explained by Manresa which this Court quoted with approval in

Cabardo v. Villanueva, 44 Phil. 186, "The transmission is
gratuitous or by gratuitous title when the recipient does not
give anything in return." It matters not whether the property
transmitted be or be not subject to any prior charges; what is
essential is that the transmission be made gratuitously, or by an act
of mere liberality of the person making it, without imposing any
obligation on the part of the recipient; and that the person receiving
the property gives or does nothing in return;
The essential thing is that the person who transmits it does
so gratuitously, from pure generosity, without requiring from
the transferee any prestation. It is evident from the record that
the transmission of the property in question to Juanito Frias Chua of
the second marriage upon the death of his father Jose Frias Chua was
by means of a hereditary succession and therefore gratuitous.

GONZALES VS CFI (104 SCRA 479)

Can a reservista convey by will, reservable property to reservatarios in the
third degree and by-pass those in the second?
Held:

NO. Article 891 clearly indicates that the reservable properties

should be inherited by all the nearest relatives within the
third degree from the prepositus.
She could not select the reservees to whom the reservable property
should be given and deprive the other reservees of their share
therein.
The reservable property does not form part of the reservistas
estate and should be given to all the seven reservatarios or
nearest relatives of the prepositus within the third degree.
While it is true that by giving the reservable property to only one
reservatario, it did not pass into the hands of strangers, nevertheless,
it is likewise true that the reservista was only one of the reservatarios
and there is no reason founded upon law and justice why the other
reservatarios should be deprived of their shares in the reservable
property. The property passes by strict operation of law.

DE PAPA VS CAMACHO 144 SCRA 281

Plaintiffs and defendant were all relatives within third degree of the
praepositus.
Issue:

Whether, 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 or, the rights of said relatives are subject
to, and should be determined by, the rules on intestate succession.
Held:

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 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
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.
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. ...

SUMAYA VS IAC 20 SCRA 178

Raul inherited 1/3 of a parcel of land from his father and 1/7 of 10 parcels of
land from his maternal grandmother.
He died single and without issue.
His mother adjudicated to herself Rauls properties. Thereafter, she sold
these properties which later came into the hands of petitioners.
Rauls brothers and his nephews and niece from a deceased bother now
claims the property by virtue of reserve troncal.
Issue:
Are petitioners innocent purchasers for value?

37

Held:

No, the fact remains however, that the affidavit of self-adjudication

executed by Consuelo stating the source of the properties thereby
showing the reservable nature thereof was registered with the
Register of Deeds of Laguna, and this is sufficient notice to the whole
world in accordance with Section 52 of the Property Registration
Decree (formerly Sec. 51 of R.A. 496) which provides:

2.

Dissolve the authority vested in the natural parent or parents,

except where the adopter is the spouse of the surviving natural
parent;

3.

Entitle the adopted person to use the adopter's surname; and

4.

Make the adopted person a legal heir of the adopter:

Provided, That if the adopter is survived by legitimate parents or
ascendants and by an adopted person, the latter shall not have
more successional rights than an acknowledged natural child:
Provided, further, That any property received gratuitously by
the adopted from the adopter shall revert to the adopter
should the former predecease the latter without legitimate
issue unless the adopted has, during his lifetime, alienated such
property: Provided, finally, That in the last case, should the
adopted leave no property other than that received from
the adopter, and he is survived by illegitimate issue or a
spouse, such illegitimate issue collectively or the spouse
shall receive one-fourth of such property; if the adopted is
survived by illegitimate issue and a spouse, then the former
collectively shall receive one-fourth and the latter also onefourth, the rest in any case reverting to the adopter,
observing in the case of the illegitimate issue the proportion
provided for in Article 895 of the Civil Code.

Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. Every

conveyance, mortgage, lease, lien attachment, order, judgment,
instrument or entry affecting registered land shall, if registered, filed
or entered in the Office of the Register of Deeds for the province or
city where the land to which it relates lies, be constructive notice to all
persons from the time of such registering, filing or entering.

Consistent with the rule in reserva viudal where the person obliged to
reserve (the widowed spouse) had the obligation to annotate in the
Registry of Property the reservable character of the property, in
reserva troncal, the reservor (the ascendant who inherited
from a descendant property which the latter inherited from
another descendant) has the duty to reserve and therefore,
the duty to annotate also.

This rule is consistent with the rule provided in the second paragraph
of Section 51 of P.D. 1529, which provides that: "The act of
registration shall be the operative act to convey or affect the land
insofar as third persons are concerned . . ." (emphasis supplied)

The cause of action of the reservees did not commence upon the
death of the propositus Raul Balantakbo on June 13, 1952 but upon
the death of the reservor Consuelo Vda. de Balantakbo on June 3,
1968. Relatives within the third degree in whose favor the
right (or property) is reserved have no title of ownership or of
fee simple over the reserved property during the lifetime of
the reservor.

L.

RESERVA ADOPTIVA (Art. 39, P.D. 603)

Article 39. Effects of Adoption. - The adoption shall:

1.

Give to the adopted person the same rights and duties as if he

were a legitimate child of the adopter: Provided, That an adopted
child cannot acquire Philippine citizenship by virtue of such
adoption;

The adopter shall not be a legal heir of the adopted

person, whose parents by nature shall inherit from him,
except that if the latter are both dead, the adopting parent
or parents take the place of the natural parents in the line of
succession, whether testate or interstate.
BANAWA VS MIRANO 97 SCRA 517

Maria Mirano received by way of donation inter-vivos parcels of land

from Doroteo Banawa and her aunt, Juliana Mendoza.

Maria was never judially adopted.

She died with no issue.

Held:

Section 5, Rule 100 of the Old Rules of Court, the pertinent portion of
which reads:
... In case of the death of the child, his parents and relatives
by nature, and not by adoption, shall be his legal heirs, except
as to property received or inherited by the adopted child from either
of his parents by adoption, which shall become the property of the

38

latter or their legitimate relatives who shall participate in the order

established by the Civil Code for intestate estates.

The submission of the petitioners is that extrajudicial adoption is

within the contemplation and spirit of this rule of reversion adoptive.
However, the rule involved specifically provides for the case of
the judicially adopted child. It is an elementary rule of construction
that when the language of the law is clear and unequivocal, the law
must be taken to mean exactly what it says.

testator, if the disinherited heir should deny it.

(850)
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
devises and legacies and other testamentary
dispositions shall be valid to such extent as will not
impair the legitime. (851a)

Art. 919.

The following shall be sufficient causes for the

disinheritance of children and descendants, legitimate
as well as illegitimate:

TEOTICO VS DEL VAL 13 SCRA 406

Deceased executed a will naming as heirs her niece and the latters
husband and her grandchildren.
Appellant opposed the probate, claiming to be an adopted child of the
deceased sister and an illegitimate child of the deceaseds bother.

(1) When a child or descendant has been found guilty

of an attempt against the life of the testator, his or
her spouse, descendants, or ascendants;

Issue:
Is she entitled to claim as an illegitimate daughter of the brother of the
testatrix or as an adopted daughter of the testatrix sister?

(2) When a child or descendant has accused the

testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
has been found groundless;

Held:

No, Article 992 of our Civil Code provides: "An illegitimate child has no
right to inherit ab intestato from the legitimate children and relatives
of his father or mother; ... ."

Likewise, the oppositor cannot also derive comfort from the fact that
she is an adopted child of Francisca Mortera because under our law
the relationship established by adoption is limited solely to
the adopter and the adopted and does not extend to the
relatives of the adopting parents or of the adopted child
except only as expressly provided for by law. Hence, no
relationship is created between the adopted and the collaterals of the
adopting parents. As a consequence, the adopted is an heir of the
adopter but not of the relatives of the adopter.

(3) When a child or descendant has been convicted of

adultery or concubinage with the spouse of the
testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the
testator to make a will or to change one already
made;
(5) A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or
descendant;

M. DISINHERITANCE
Art. 915.

(6) Maltreatment of the testator by word or deed,

by the child or descendant;

A compulsory heir may, in consequence of

disinheritance, be deprived of his legitime, for
causes expressly stated by law. (848a)

Art. 916.

Disinheritance can be effected only through a will

wherein the legal cause therefor shall be specified.
(849)

Art. 917.

The burden of proving the truth of the cause for

disinheritance shall rest upon the other heirs of the

(7) When a child or descendant leads a dishonorable

or disgraceful life;
(8) Conviction of a crime which carries with it the
penalty of civil interdiction. (756, 853, 674a)
Art. 920.

The following shall be sufficient causes

disinheritance of parents or ascendants,
legitimate or illegitimate:

for the
whether

39

1.

2.

Art. 921.
spouse:

(4) When the spouse has given cause for legal

separation;

When the parents have abandoned their children

or induced their daughters to live a corrupt or
immoral life, or attempted against their virtue;

(5) When the spouse has given grounds for the loss of
parental authority;

When the parent or ascendant has been convicted

of an attempt against the life of the testator,
his or her spouse, descendants, or ascendants;

(6) Unjustifiable refusal to support the children or the

other spouse. (756, 855, 674a)

3.

When the parent or ascendant has accused the

testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found to be false;

Art. 922.

A subsequent reconciliation between the offender and

the offended person deprives the latter of the right
to
disinherit,
and
renders
ineffectual
any
disinheritance that may have been made. (856)

4.

When the parent or ascendant has been convicted

of adultery or concubinage with the spouse of the
testator;

Art. 923.

5.

When the parent or ascendant by fraud, violence,

intimidation, or undue influence causes the
testator to make a will or to change one
already made;

The children and descendants of the person

disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with
respect to the legitime; but the disinherited parent
shall not have the usufruct or administration of the
property which constitutes the legitime. (857)

6.

The loss of parental authority for causes specified

in this Code;

7.

The refusal to support the children

descendants without justifiable cause;

8.

An attempt by one of the parents against the

life of the other, unless there has been a
reconciliation between them. (756, 854, 674a)

N.
Art. 957.

LEGACIES AND DEVISES

The legacy or devise shall be without effect:
1.

If the testator transforms the thing bequeathed

in such a manner that it does not retain either the
form or the denomination it had;

2.

If the testator by any title or for any cause alienates

the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or
devise shall be without effect only with respect
to the part thus alienated. If after the alienation
the thing should again belong to the testator, even if
it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue
of the exercise of the right of repurchase;

3.

If the thing bequeathed is totally lost during the

lifetime of the testator, or after his death without
the heir's fault. Nevertheless, the person obliged
to pay the legacy or devise shall be liable for
eviction if the thing bequeathed should not have
been determinate as to its kind, in accordance with
the provisions of Article 928. (869a)

or

The following shall be sufficient causes for disinheriting a

(1) When the spouse has been convicted of an attempt
against the life of the testator, his or her
descendants, or ascendants;
(2) When the spouse has accused the testator of a
crime for which the law prescribes imprisonment of six
years or more, and the accusation has been found to be
false;
(3) When the spouse by fraud, violence, intimidation,
or undue influence cause the testator to make a will or
to change one already made;

FERNANDEZ VS DEMAGIBA (L-23638, OCT. 12, 1967)

40

In fact, as found by the Court of Appeals in its decision annulling these

conveyances (affirmed in that point by this Supreme Court in Reyes
vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated
on July 31, 1954), "no consideration whatever was paid by respondent
Dimagiba" on account of the transfers, thereby rendering it even more
doubtful whether in conveying the property to her legatee, the
testatrix merely intended to comply in advance with what she had
ordained in her testament, rather than an alteration or departure
therefrom.

Revocation being an exception, we believe, with the Courts below,

that in the circumstances of the particular case, Article 957 of the Civil
Code of the Philippines, does not apply to the case at bar.

Not only that, but even if it were applicable, the annulment of the
conveyances would not necessarily result in the revocation of the
legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds of
sale were also that it was the moral influence, originating from their
confidential relationship, which was the only cause for the execution
of the 1943 and 1944 conveyances.

If the annulment was due to undue influence, as the quoted passage

implies, then the transferor was not expressing her own free will and
intent in making the conveyances. Hence, it can not be concluded,
either, that such conveyances established a decision on her part to
abandon the original legacy.

BELEN VS BPI (109 PHIL 1008)

Unquestionably, the testator was at liberty to provide a series of
successive substitutions in the order of proximity of relationship to
the original legatee. And he, likewise, was free to ordain that the
more distant descendants should enjoy the right of representation
as in intestate succession.

41