G.R. No.

L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.

Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein. 1äwphï1.ñët

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his
first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children:
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after
all taxes, obligations, and expenses of administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen;
(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam
Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares. 1äw phï1.ñët

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His
will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the lower court approved and allowed
the various motions or petitions filed by the latter three requesting partial advances on account of
their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition,
the executor — pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided
the residuary estate into seven equal portions for the benefit of the testator's seven legitimate
children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions
to the project of partition on the ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied
the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply —
Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a
conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place
where the properties are situated, renvoi would arise, since the properties here involved are found in
the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not
be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue
that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation
to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that —

ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

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

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art.
16 a specific provision in itself which must be applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the national law of the decedent.

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.

Appellants would also point out that the decedent executed two wills — one to govern his Texas
estate and the other his Philippine estate — arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 — now Article 16 — of the Civil Code
states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws 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.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of
the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss
the petition in Special Proceedings No. 591 ACEB No special pronouncement is
made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court
of Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch
XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on
the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio,
Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The
will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private
respondents. The will contained provisions on burial rites, payment of debts, and the appointment of
a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by me to
my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing
at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-
deceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely:
Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to
be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for
the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir
and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was
denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed
with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March
11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial
court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No.
591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review
of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was
filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for
petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic
validity of the will sought to be probated and it cannot pass upon the intrinsic validity
thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does not apply to private respondents who
are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a share
in the inheritance but there is a definite distinct intention of the testator in the case at
bar, explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he
effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code
may not apply as she does not ascend or descend from the testator, although she is a compulsory
heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however,
the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption
by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of the adopter and makes
the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were deprived of at
least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is
a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o
donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies and devises made in
the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of
the testator results in totally abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it
either as executor or as a claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At
the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil
Code as a person called to the succession either by the provision of a will or by operation of law.
However, intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing
to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB
must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de
Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308
[1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of
certiorari and prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (DD Comendador Construction
Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid
grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testator's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court
has declared that the will has been duly authenticated. Said court at this stage of the proceedings is
not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v.
Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114
SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held
that the will in question was a complete nullity and dismissed the petition without costs. On appeal
the Supreme Court upheld the decision of the probate court, induced by practical considerations.
The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a belief that
we might as well meet head-on the issue of the validity of the provisions of the will in
question. After all there exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving
spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was
fully substantiated by the evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals
with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The
Court held that as on its face the will appeared to have preterited the petitioner the respondent judge
should have denied its probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the
probate court should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v.
Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No.
591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal
capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the merits of the
case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progress
when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact that one of the private respondents
had been preterited would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of
the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the
right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence
of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated
October 23, 1985 are hereby AFFIRMED.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in
the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability
to determine how the testator would have distributed his estate if none of the heirs had been omitted
or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).
On the other hand, if the omission is intentional, the effect would be a defective disinheritance
covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is
partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator
had known of the existence of the compulsory heir at the time of the execution of the
will, he would have instituted such heir. On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption of the law is that he wants such heir to
receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition,
pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in
the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability
to determine how the testator would have distributed his estate if none of the heirs had been omitted
or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance
covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is
partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator
had known of the existence of the compulsory heir at the time of the execution of the
will, he would have instituted such heir. On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption of the law is that he wants such heir to
 receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition,
pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.

G.R. No. L-22595 November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers
of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the
denial of the motion for reconsideration of the order approving the partition; (4) the approval of the
purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure
not to postpone the approval of the scheme of partition and the delivery of the deceased's business
to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or article 10 of the Civil Code which,
among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as

well as to the amount of the successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose succession is in question,
whatever may be the nature of the property or the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the
Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to
be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of the scheme of partition until
the receipt of certain testimony requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error.
It is discretionary with the trial court, and, taking into consideration that the oppositor was granted
ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the
court in this particular. There is, therefore, no evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and executed. lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which
says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest and not by free choice, nor by nationality and,
on the other hand, having resided for a considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my will, be made and
disposed of in accordance with the laws in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition
found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees
must respect the testator's will to distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator,
as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil
Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should
the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to
the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate
be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees,
and the scheme of partition submitted by the judicial administrator is approved in all other respects,
without any pronouncement as to costs.

So ordered.

G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,

vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.

Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.

PUNO, J.:

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of
appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by
Calibia Lingdan Bulanglang, who died on March 20, 1976.

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. 2 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 decedent’s thumbmarks were procured
through fraud and undue influence; and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedent’s
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. When subjected to cross-
examination, Codcodio Nacnas as witness testified as follows:
Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1", Exhibit
"B" and "B-1" which is the testament was passed around all of you so
that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign — I withdraw

the question. How did Calibia Lingdan Bulanglang sign the last will
and testament?

A She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb to her
name.

Q After she signed, who was the second to sign allegedly all of you
there present?

A Jose Becyagen.

Q With what did Jose Becyagen sign the testament, Exhibit "B" and
"B-1"?

A Ballpen.

Q And after Jose Becyagen signed his name with the ballpen, who
was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen, Exhibit
"B" and "B-1" plus the ballpen which used to sign so that you could
sign your name, is that correct?

A Yes, sir.

Q And then after you signed, who was the next to sign the document,
Exhibit "B" and "B-1"?

A Hilario Coto-ong.
 Q So you passed also to Hilario Coto-ong the same Exhibit "B" and
"B-1" and the ballpen so that he could sign his name as witness to
the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truth before the
Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination in regard
to the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all sign with the
same ballpen?

A One.

Such admissions from instrumental witnesses are indeed significant since they point
to no other conclusion than that the documents were not signed by them in their
presence but on different occasions since the same ballpen used by them
supposedly in succession could not have produced a different color from blue to
black and from black to blue. In fact, the attestation clause followed the same
pattern. The absurd sequence was repeated when they signed the codicil, for which
reason, We have no other alternative but to disallow the Last Will and Codicil. Verily,
if the witnesses and testatrix used the same ballpen, then their signatures would
have been in only one color, not in various ones as shown in the documents.
Moreover, the signatures, in different colors as they are, appear to be of different
broadness, some being finer than the others, indicating that, contrary to what the
testamentary witnesses declared on the witness stand, not only one ballpen was
used, and, therefore, showing that the documents were not signed by the testatrix
and instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46.
Citations omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was
denied by the respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent court’s
conclusion that both decedent’s will and codicil were not subscribed by the witnesses in the
presence of the testator and of one another, contrary to the requirements of Article 805 of the Civil
Code. He contends that:
 1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING BASED
ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO THE
TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE
THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL
WITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING THE
PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND
TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG.

The petition must fail.

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 decedent’s 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, viz.:

. . . (Private respondents) pointed out however, that the assertions of petitioner’s

witnesses are rife with contradictions, particularly the fact that the latter’s signatures
on the documents in issue appear to have been written in ballpens of different colors
contrary to the statements of said witnesses that all of them signed with only one
ballpen. The implication is that the subscribing witnesses to the Will and Codicil, and
the testatrix did not simultaneously sign each of the documents in one sitting but did
it piecemeal — a violation of Art. 805 of the Code. This conclusion of the (private
respondents) is purely circumstantial. From this particular set of facts, numerous
inferences without limits can be drawn depending on which side of the fence one is
on. For instance, considering the time interval that elapsed between the making of
the Will and Codicil, and up to the filing of the petition for probate, the possibility is
not remote that one or two of the attesting witnesses may have forgotten certain
details that transpired when they attested the documents in question . . . (Rollo, pp.
36-37.)

A review of the facts and circumstances upon which respondent Court of Appeals based its
impugned finding, however, fails to convince us that the testamentary documents in question were
subscribed and attested by the instrumental witnesses during a single occasion.

As sharply noted by respondent appellate court, the signatures of some attesting witnesses in
decedent’s will and its codicil were written in blue ink, while the others were in black. This
discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens
were used by the signatories on the two documents. In fact, two (2) of petitioner’s witnesses even
testified that only one (1) ballpen was used in signing the two testamentary documents.
It is accepted that there are three sources from which a tribunal may properly acquire knowledge for
making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains these sources as follows:

If, for example, it is desired to ascertain whether the accused has lost his right hand
and wears an iron hook in place of it, one source of belief on the subject would be
the testimony of a witness who had seen the arm; in believing this testimonial
evidence, there is an inference from the human assertion to the fact asserted. A
second source of belief would be the mark left on some substance grasped or carried
by the accused; in believing this circumstantial evidence, there is an inference from
the circumstance to the thing producing it. A third source of belief remains, namely,
the inspection by the tribunal of the accused’s arm. This source differs from the other
two in omitting any step of conscious inference or reasoning, and in proceeding by
direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all, a third
source of inference, i.e., an inference from the impressions or perceptions of the
tribunal to the objective existence of the thing perceived. The law does not need and
does not attempt to consider theories of psychology as to the subjectivity of
knowledge or the mediateness of perception. It assumes the objectivity of external
nature; and, for the purposes of judicial investigation, a thing perceived by the
tribunal as existing does exist.

There are indeed genuine cases of inference by the tribunal from things perceived to
other things unperceived — as, for example, from a person’s size, complexion, and
features, to his age; these cases of a real use of inference can be later more fully
distinguished . . . But we are here concerned with nothing more than matters directly
perceived — for example, that a person is of small height or is of dark complexion; as
to such matters, the perception by the tribunal that the person is small or large, or
that he has a dark or light complexion, is a mode of acquiring belief which is
independent of inference from either testimonial or circumstantial evidence. It is the
tribunal’s self-perception, or autopsy, of the thing itself.

From the point of view of the litigant party furnishing this source of belief, it may be
termed Autoptic Proference. 3 (Citations omitted.)

In the case at bench, the 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 petitioner’s 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 decedent’s thumbmarking thereof, to the
alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in
Judge Tolete’s testimony is there any kind of explanation for the different-colored signatures on the
testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court
of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and
Testament, and the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMED IN
TOTO. Costs against petitioner.

SO ORDERED.

[G.R. No. 113725. June 29, 2000]

JOHNNY S. RABADILLA, petitioner, vs. COURT OF APPEALS AND

[1]

MARIA MARLENA COSCOLUELLA Y BELLEZA

[2]

VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of

Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555, which
[3]

set aside the decision of Branch 52 of the Regional Trial Court in

Bacolod City, and ordered the defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No.
1392, together with its fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja

Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855
square meters of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly probated and
admitted in Special Proceedings No. 4046 before the then Court of First
Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to

Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer

Certificate of Title No. RT-4002 (10942), which is registered in my
name according to the records of the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the children
and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that

should I die and Jorge Rabadilla shall have already received the
ownership of the said Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002 (10942), and
also at the time that the lease of Balbinito G. Guanzon of the said
lot shall expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela
y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot
No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10492), shall have the obligation to still give
yearly, the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on the month of
December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in

the event that the one to whom I have left and bequeathed, and
his heir shall later sell, lease, mortgage this said Lot, the buyer,
lessee, mortgagee, shall have also the obligation to respect and
deliver yearly ONE HUNDRED (100) piculs of sugar to Maria
Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the
buyer, lessee or the mortgagee of this lot, not have respected my
command in this my addition (Codicil), Maria Marlina Coscolluela
y Belleza, shall immediately seize this Lot No. 1392 from my heir
 and the latter's heirs, and shall turn it over to my near desendants,
(sic) and the latter shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina shall die. I
further command in this my addition (Codicil) that my heir and his
heirs of this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot negotiate
with others than my near descendants and my sister." [4]

Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No.
44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina
and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all
surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos

brought a complaint, docketed as Civil Case No. 5588, before Branch
52 of the Regional Trial Court in Bacolod City, against the above-
mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of
subject Codicil. The Complaint alleged that the defendant-heirs violated
the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank

and the Republic Planters Bank in disregard of the testatrix's
specific instruction to sell, lease, or mortgage only to the near
descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver

one hundred (100) piculs of sugar (75 piculs export sugar and 25
piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y
Belleza from sugar crop years 1985 up to the filing of the
complaint as mandated by the Codicil, despite repeated demands
for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil
which provided that in case of the sale, lease, or mortgage of the
property, the buyer, lessee, or mortgagee shall likewise have the
obligation to deliver 100 piculs of sugar per crop year to herein
private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-
heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late
Aleja Belleza, the cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of
title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but

on March 28, 1990 the Order of Default was lifted, with respect to
defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain

Alan Azurin, son-in-law of the herein petitioner who was lessee of the
property and acting as attorney-in-fact of defendant-heirs, arrived at an
amicable settlement and entered into a Memorandum of Agreement on
the obligation to deliver one hundred piculs of sugar, to the following
effect:

"That for crop year 1988-89, the annuity mentioned in Entry No.
49074 of TCT No. 44489 will be delivered not later than January
of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or

then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December of
each sugar crop year, in Azucar Sugar Central; and,
this is considered compliance of the annuity as
mentioned, and in the same manner will compliance
of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87,
and 1987-88, will be complied in cash equivalent of the number of
piculs as mentioned therein and which is as herein agreed upon,
taking into consideration the composite price of sugar during each
sugar crop year, which is in the total amount of ONE HUNDRED
FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a

staggered cash installment, payable on or before the end of December
of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1988-
89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1989-
90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1990-
91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1991-
92."
[5]

However, there was no compliance with the aforesaid Memorandum of

Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court

finds that the action is prematurely filed as no cause of action
against the defendants has as yet arose in favor of plaintiff. While
there maybe the non-performance of the command as mandated
exaction from them simply because they are the children of Jorge
Rabadilla, the title holder/owner of the lot in question, does not
warrant the filing of the present complaint. The remedy at bar
must fall. Incidentally, being in the category as creditor of the left
estate, it is opined that plaintiff may initiate the intestate
proceedings, if only to establish the heirs of Jorge Rabadilla and
in order to give full meaning and semblance to her claim under the
Codicil.

In the light of the aforegoing findings, the Complaint being

prematurely filed is DISMISSED without prejudice.

SO ORDERED." [6]
On appeal by plaintiff, the First Division of the Court of Appeals
reversed the decision of the trial court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-

appellant's right to receive 100 piculs of sugar annually out of the
produce of Lot No. 1392; defendants-appellee's obligation under
Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla,
to deliver such amount of sugar to plaintiff-appellant; defendants-
appellee's admitted non-compliance with said obligation since
1985; and, the punitive consequences enjoined by both the codicil
and the Civil Code, of seizure of Lot No. 1392 and its reversion to
the estate of Aleja Belleza in case of such non-compliance, this
Court deems it proper to order the reconveyance of title over Lot
No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja
Belleza. However, plaintiff-appellant must institute separate
proceedings to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No. 1392 to
Aleja Belleza's legal heirs in order to enforce her right, reserved to
her by the codicil, to receive her legacy of 100 piculs of sugar per
year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and

another one entered ordering defendants-appellees, as heirs of
Jorge Rabadilla, to reconvey title over Lot No. 1392, together with
its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED." [7]

Dissatisfied with the aforesaid disposition by the Court of Appeals,

petitioner found his way to this Court via the present petition, contending
that the Court of Appeals erred in ordering the reversion of Lot 1392 to
the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of
the Codicil, and in ruling that the testamentary institution of Dr. Jorge
Rabadilla is a modal institution within the purview of Article 882 of the
New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the

appeal in accordance with Article 882 of the New Civil Code on modal
institutions and in deviating from the sole issue raised which is the
absence or prematurity of the cause of action. Petitioner maintains that
Article 882 does not find application as there was no modal institution
and the testatrix intended a mere simple substitution - i.e. the instituted
heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near
descendants" should the obligation to deliver the fruits to herein private
respondent be not complied with. And since the testatrix died single and
without issue, there can be no valid substitution and such testamentary
provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for
the reason that the substituted heirs are not definite, as the substituted
heirs are merely referred to as "near descendants" without a definite
identity or reference as to who are the "near descendants" and
therefore, under Articles 843 and 845 of the New Civil Code, the
[8] [9]

substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition

that the Court of Appeals deviated from the issue posed before it, which
was the propriety of the dismissal of the complaint on the ground of
prematurity of cause of action, there was no such deviation. The Court
of Appeals found that the private respondent had a cause of action
against the petitioner. The disquisition made on modal institution was,
precisely, to stress that the private respondent had a legally
demandable right against the petitioner pursuant to subject Codicil; on
which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights

are transmitted from the moment of death of the decedent and[10]

compulsory heirs are called to succeed by operation of law. The

legitimate children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory heirs. Thus, the
[11]

petitioner, his mother and sisters, as compulsory heirs of the instituted

heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the successional rights were
transmitted to them from the moment of death of the decedent, Dr.
Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the
property, rights and obligations of a person, not extinguished by his
death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue
of subject Codicil were transmitted to his forced heirs, at the time of his
death. And since obligations not extinguished by death also form part of
the estate of the decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted
to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr.
Jorge Rabadilla, subject to the condition that the usufruct thereof would
be delivered to the herein private respondent every year. Upon the
death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his
rights and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein
private respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the
fulfillment or performance of which is now being demanded by the latter
through the institution of the case at bar. Therefore, private respondent
has a cause of action against petitioner and the trial court erred in
dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be noncompliance with the obligation to
deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to

take the place of the heir or heirs first instituted. Under substitutions in
general, the testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the original heir
should die before him/her, renounce the inheritance or be incapacitated
to inherit, as in a simple substitution, or (2) leave his/her property to
[12]

one person with the express charge that it be transmitted subsequently

to another or others, as in a fideicommissary substitution. The Codicil
[13]

sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default

of the first heir by reason of incapacity, predecease or renunciation. In
[14]

the case under consideration, the provisions of subject Codicil do not

provide that should Dr. Jorge Rabadilla default due to predecease,
incapacity or renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge
Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to the testatrix's
near descendants.

Neither is there a fideicommissary substitution here and on this point,

petitioner is correct. In a fideicommissary substitution, the first heir is
strictly mandated to preserve the property and to transmit the same
later to the second heir. In the case under consideration, the instituted
[15]

heir is in fact allowed under the Codicil to alienate the property provided
the negotiation is with the near descendants or the sister of the testatrix.
Thus, a very important element of a fideicommissary substitution is
lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir.
"Without this obligation to preserve clearly imposed by the testator in his
will, there is no fideicommissary substitution." Also, the near
[16]

descendants' right to inherit from the testatrix is not definite. The

property will only pass to them should Dr. Jorge Rabadilla or his heirs
not fulfill the obligation to deliver part of the usufruct to private
respondent.

Another important element of a fideicommissary substitution is also

missing here. Under Article 863, the second heir or the fideicommissary
to whom the property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary substitution is
therefore, void if the first heir is not related by first degree to the second
heir. In the case under scrutiny, the near descendants are not at all
[17]

related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in
point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the

application of the property left by the testator, or the charge
imposed on him, shall not be considered as a condition unless it
appears that such was his intention.

That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.
 Art. 883. When without the fault of the heir, an institution referred
to in the preceding article cannot take effect in the exact manner
stated by the testator, it shall be complied with in a manner most
analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what

is known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the
testator, or (3) the charge imposed by the testator upon the heir. A [18]

"mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession. On the other hand, in
[19]

a conditional testamentary disposition, the condition must happen or be

fulfilled in order for the heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the mode obligates but
does not suspend. To some extent, it is similar to a resolutory
[20]

condition.[21]

From the provisions of the Codicil litigated upon, it can be gleaned

unerringly that the testatrix intended that subject property be inherited
by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix
imposed an obligation on the said instituted heir and his successors-in-
interest to deliver one hundred piculs of sugar to the herein private
respondent, Marlena Coscolluela Belleza, during the lifetime of the
latter. However, the testatrix did not make Dr. Jorge Rabadilla's
inheritance and the effectivity of his institution as a devisee, dependent
on the performance of the said obligation. It is clear, though, that should
the obligation be not complied with, the property shall be turned over to
the testatrix's near descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in nature because it
imposes a charge upon the instituted heir without, however, affecting
the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality,

an obligation imposed upon the heir should not be considered a
condition unless it clearly appears from the Will itself that such was the
intention of the testator. In case of doubt, the institution should be
considered as modal and not conditional. [22]

Neither is there tenability in the other contention of petitioner that the

private respondent has only a right of usufruct but not the right to seize
the property itself from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on 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. Such [23]

construction as will sustain and uphold the Will in all its parts must be
adopted. [24]

Subject Codicil provides that the instituted heir is under obligation to

deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza
Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the property involved. The
Codicil further provides that in the event that the obligation to deliver the
sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near descendants. The non-
performance of the said obligation is thus with the sanction of seizure of
the property and reversion thereof to the testatrix's near descendants.
Since the said obligation is clearly imposed by the testatrix, not only on
the instituted heir but also on his successors-in-interest, the sanction
imposed by the testatrix in case of non-fulfillment of said obligation
should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the

amicable settlement, the said obligation imposed by the Codicil has
been assumed by the lessee, and whatever obligation petitioner had
become the obligation of the lessee; that petitioner is deemed to have
made a substantial and constructive compliance of his obligation
through the consummated settlement between the lessee and the
private respondent, and having consummated a settlement with the
petitioner, the recourse of the private respondent is the fulfillment of the
obligation under the amicable settlement and not the seizure of subject
property.

Suffice it to state that a Will is a personal, solemn, revocable and free

act by which a person disposes of his property, to take effect after his
death. Since the Will expresses the manner in which a person intends
[25]

how his properties be disposed, the wishes and desires of the testator
must be strictly followed. Thus, a Will cannot be the subject of a
 compromise agreement which would thereby defeat the very purpose of
making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of

the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-
35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.
G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate
of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument
was execute without the testator having been fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last
will and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether
the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the
testator and of each other, considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk
& Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would
have to avow assent, or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public
were one of the attesting instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;
In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will
or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the
last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.