Arts 791-795, Wills and Succession
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA DIZON, oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of Pampanga approving the
Executrix-appellee's project of partition instead of Oppositors-Appellants'
proposed counter-project of partition.1
On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles,
Pampanga, and was survived by seven compulsory heirs, to wit, six legitimate
children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon
(herein executrix-appellee), Angelina Dizon and Josefina Dizon, and a
legitimate granddaughter named Lilia Dizon, who is the only legitimate child
and heir of Ramon Dizon, a pre-deceased legitimate son of the said decedent.
Six of these seven compulsory heirs (except Marina Dizon, the executrix-
appellee) are the oppositors-appellants.
The deceased testatrix left a last will executed on February 2, 1960 and written
in the Pampango dialect. Named beneficiaries in her will were the above-
named compulsory heirs, together with seven other legitimate grandchildren,
namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Jolly Jimenez and Laureano Tiambon.
In her will, the testatrix divided, distributed and disposed of all her properties
appraised at P1,801,960.00 (except two small parcels of land appraised at
P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum
of P409.95 and ten shares of Pampanga Sugar Development Company valued
at P350.00) among her above-named heirs.
Testate proceedings were in due course commenced2 and by order dated
March 13, 1961, the last will and testament of the decedent was duly allowed
and admitted to probate, and the appellee Marina Dizon-Rivera was appointed
executrix of the testatrix' estate, and upon her filing her bond and oath of
office, letters testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of
Angeles, Pampanga was appointed commissioner to appraise the properties
of the estate. He filed in due course his report of appraisal and the same was
approved in toto by the lower court on December 12, 1963 upon joint petition
of the parties.
The real and personal properties of the testatrix at the time of her death thus
had a total appraised value of P1,811,695.60, and the legitime of each of the
seven compulsory heirs amounted to P129,362.11.3 (¹/7 of the half of the
estate reserved for the legitime of legitimate children and descendants). 4 In
her will, the testatrix "commanded that her property be divided" in
accordance with her testamentary disposition, whereby she devised and
bequeathed specific real properties comprising practically the entire bulk of
her estate among her six children and eight grandchildren. The appraised
values of the real properties thus respectively devised by the testatrix to the
beneficiaries named in her will, are as follows:
1. Estela Dizon ....................................... P 98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon ....................................... 131,987.41
6. Lilia Dizon .............................................. 72,182.47
7. Marina Dizon ..................................... 1,148,063.71
8. Pablo Rivera, Jr. ...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition dated February 5, 1964, in
substance adjudicating the estate as follows:
(1) with the figure of P129,254.96 as legitime for a basis
Marina (exacultrix-appellee) and Tomas (appellant) are
admittedly considered to have received in the will more
than their respective legitime, while the rest of the
appellants, namely, Estela, Bernardita, Angelina, Josefina
and Lilia received less than their respective legitime;
(2) thus, to each of the latter are adjudicated the
properties respectively given them in the will, plus cash
and/or properties, to complete their respective legitimes
to P129,254.96; (3) on the other hand, Marina and Tomas
are adjudicated the properties that they received in the
will less the cash and/or properties necessary to complete
the prejudiced legitime mentioned in number 2 above;
(4) the adjudications made in the will in favor of the
grandchildren remain untouched.<äre||anº•1àw>
On the other hand oppositors submitted their own
counter-project of partition dated February 14, 1964,
wherein they proposed the distribution of the estate on
the following basis:
(a) all the testamentary dispositions were proportionally
reduced to the value of one-half (½) of the entire estate,
the value of the said one-half (½) amounting to
P905,534.78; (b) the shares of the Oppositors-Appellants
should consist of their legitime, plus the devises in their
favor proportionally reduced; (c) in payment of the total
shares of the appellants in the entire estate, the properties
devised to them plus other properties left by the Testatrix
and/or cash are adjudicated to them; and (d) to the
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Arts 791-795, Wills and Succession
grandchildren who are not compulsory heirs are
adjudicated the properties respectively devised to them
subject to reimbursement by Gilbert D. Garcia, et al., of
the sums by which the devise in their favor should be
proportionally reduced.
Under the oppositors' counter-project of partition, the testamentary
disposition made by the testatrix of practically her whole estate of
P1,801,960.01, as above stated, were proposed to be reduced to the amounts
set forth after the names of the respective heirs and devisees totalling one-
half thereof as follows:
1. Estela Dizon ........................................... P 49,485.56
2. Angelina Dizon ......................................... 53,421.42
3. Bernardita Dizon ....................................... 26,115.04
4. Josefina Dizon .......................................... 26,159.38
5. Tomas V. Dizon ......................................... 65,874.04
6. Lilia Dizon .................................................. 36,273.13
7. Marina Dizon ........................................... 576,938.82
8. Pablo Rivera, Jr. ......................................... 34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80
T o t a l ................................................... P905,534.78
while the other half of the estate (P905,534.78) would be deemed as
constituting the legitime of the executrix-appellee and oppositors-appellants,
to be divided among them in seven equal parts of P129,362.11 as their
respective legitimes.
The lower court, after hearing, sustained and approved the executrix' project
of partition, ruling that "(A)rticles 906 and 907 of the New Civil Code
specifically provide that when the legitime is impaired or prejudiced, the same
shall be completed and satisfied. While it is true that this process has been
followed and adhered to in the two projects of partition, it is observed that
the executrix and the oppositors differ in respect to the source from which the
portion or portions shall be taken in order to fully restore the impaired
legitime. The proposition of the oppositors, if upheld, will substantially result
in a distribution of intestacy, which is in controversion of Article 791 of the
New Civil Code" adding that "the testatrix has chosen to favor certain heirs in
her will for reasons of her own, cannot be doubted. This is legally permissible
within the limitation of the law, as aforecited." With reference to the payment
in cash of some P230,552.38, principally by the executrix as the largest
beneficiary of the will to be paid to her five co-heirs, the oppositors (excluding
Tomas Dizon), to complete their impaired legitimes, the lower court ruled that
"(T)he payment in cash so as to make the proper adjustment to meet with the
requirements of the law in respect to legitimes which have been impaired is,
in our opinion, a practical and valid solution in order to give effect to the last
wishes of the testatrix."
From the lower court's orders of approval, oppositors-appellants have filed
this appeal, and raise anew the following issues: .
1. Whether or not the testamentary dispositions made in the testatrix' will are
in the nature of devises imputable to the free portion of her estate, and
therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus their legitime under
Article 1063, or merely to demand completion of their legitime under Article
906 of the Civil Code; and
3. Whether the appellants may be compelled to accept payment in cash on
account of their legitime, instead of some of the real properties left by the
Testatrix;
which were adversely decided against them in the proceedings below.
The issues raised present a matter of determining the avowed intention of the
testatrix which is "the life and soul of a will."5 In consonance therewith, our
Civil Code included the new provisions found in Articles 788 and 791 thereof
that "(I)f a testamentary disposition admits of different interpretations, in case
of doubt, that interpretation by which the disposition is to be operative shall
be preferred" and "(T)he 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." In Villanueva vs. Juico6 for
violation of these rules of interpretation as well as of Rule 123, section 59 of
the old Rules of Court, 7 the Court, speaking through Mr. Justice J.B.L. Reyes,
overturned the lower court's decision and stressed that "the intention and
wishes of the testator, when clearly expressed in his will, constitute the fixed
law of interpretation, and all questions raised at the trial, relative to its
execution and fulfillment, must be settled in accordance therewith, following
the plain and literal meaning of the testator's words, unless it clearly appears
that his intention was otherwise." 8
The testator's wishes and intention constitute the first and principal law in the
matter of testaments, and to paraphrase an early decision of the Supreme
Court of Spain, 9 when expressed clearly and precisely in his last will amount
to the only law whose mandate must imperatively be faithfully obeyed and
complied with by his executors, heirs and devisees and legatees, and neither
these interested parties nor the courts may substitute their own criterion for
the testator's will. Guided and restricted by these fundamental premises, the
Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the testatrix' testamentary
disposition was in the nature of a partition of her estate by will. Thus, in the
third paragraph of her will, after commanding that upon her death all her
obligations as well as the expenses of her last illness and funeral and the
expenses for probate of her last will and for the administration of her property
in accordance with law, be paid, she expressly provided that "it is my wish and
I command that my property be divided" in accordance with the dispositions
immediately thereafter following, whereby she specified each real property in
her estate and designated the particular heir among her seven compulsory
heirs and seven other grandchildren to whom she bequeathed the same. This
was a valid partition 10 of her estate, as contemplated and authorized in the
first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a
person make a partition of his estate by an act inter vivos or by will, such
partition shall be respected, insofar as it does not prejudice the legitime of the
compulsory heirs." This right of a testator to partition his estate is subject only
to the right of compulsory heirs to their legitime. The Civil Code thus provides
the safeguard for the right of such compulsory heirs:
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.
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Arts 791-795, Wills and Succession
ART. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive.
This was properly complied with in the executrix-
appellee's project of partition, wherein the five
oppositors-appellants namely Estela, Bernardita,
Angelina, Josefina and Lilia, were adjudicated the
properties respectively distributed and assigned to them
by the testatrix in her will, and the differential to complete
their respective legitimes of P129,362.11 each were taken
from the cash and/or properties of the executrix-appellee,
Marina, and their co-oppositor-appellant, Tomas, who
admittedly were favored by the testatrix and received in
the partition by will more than their respective legitimes.
2. This right of a testator to partition his estate by will was recognized even in
Article 1056 of the old Civil Code which has been reproduced now as Article
1080 of the present Civil Code. The only amendment in the provision was that
Article 1080 "now permits any person (not a testator, as under the old law) to
partition his estate by act inter vivos." 11 This was intended to repeal the then
prevailing doctrine 12 that for a testator to partition his estate by an act inter
vivos, he must first make a will with all the formalities provided by law.
Authoritative commentators doubt the efficacy of the amendment 13 but the
question does not here concern us, for this is a clear case of partition by will,
duly admitted to probate, which perforce must be given full validity and effect.
Aside from the provisions of Articles 906 and 907 above quoted, other codal
provisions support the executrix-appellee's project of partition as approved by
the lower court rather than the counter-project of partition proposed by
oppositors-appellants whereby they would reduce the testamentary
disposition or partition made by the testatrix to one-half and limit the same,
which they would consider as mere devises or legacies, to one-half of the
estate as the disposable free portion, and apply the other half of the estate to
payment of the legitimes of the seven compulsory heirs. Oppositors' proposal
would amount substantially to a distribution by intestacy and pro tanto nullify
the testatrix' will, contrary to Article 791 of the Civil Code. It would further run
counter to the provisions of Article 1091 of the Civil Code that "(A) partition
legally made confers upon each heir the exclusive ownership of the property
adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of
the deceased testator Pedro Teves of two large coconut plantations in favor
of his daughter, Concepcion, as against adverse claims of other compulsory
heirs, as being a partition by will, which should be respected insofar as it does
not prejudice the legitime of the compulsory heirs, in accordance with Article
1080 of the Civil Code. In upholding the sale made by Concepcion to a stranger
of the plantations thus partitioned in her favor in the deceased's will which
was being questioned by the other compulsory heirs, the Court ruled that
"Concepcion Teves by operation of law, became the absolute owner of said
lots because 'A partition legally made confers upon each heir the exclusive
ownership of the property adjudicated to him' (Article 1091, New Civil Code),
from the death of her ancestors, subject to rights and obligations of the latter,
and, she can not be deprived of her rights thereto except by the methods
provided for by law (Arts. 657, 659, and 661, Civil Code). 15 Concepcion Teves
could, as she did, sell the lots in question as part of her share of the proposed
partition of the properties, especially when, as in the present case, the sale
has been expressly recognized by herself and her co-heirs ..."
4. The burden of oppositors' contention is that the testamentary dispositions
in their favor are in the nature of devises of real property, citing the testatrix'
repeated use of the words "I bequeath" in her assignment or distribution of
her real properties to the respective heirs. From this erroneous premise, they
proceed to the equally erroneous conclusion that "the legitime of the
compulsory heirs passes to them by operation of law and that the testator can
only dispose of the free portion, that is, the remainder of the estate after
deducting the legitime of the compulsory heirs ... and all testamentary
dispositions, either in the nature of institution of heirs or of devises or legacies,
have to be taken from the remainder of the testator's estate constituting the
free portion." 16
Oppositors err in their premises, for the adjudications and assignments in the
testatrix' will of specific properties to specific heirs cannot be considered all
devises, for it clearly appear from the whole context of the will and the
disposition by the testatrix of her whole estate (save for some small properties
of little value already noted at the beginning of this opinion) that her clear
intention was to partition her whole estate through her will. The repeated use
of the words "I bequeath" in her testamentary dispositions acquire no legal
significance, such as to convert the same into devises to be taken solely from
the free one-half disposable portion of the estate. Furthermore, the testatrix'
intent that her testamentary dispositions were by way of adjudications to the
beneficiaries as heirs and not as mere devisees, and that said dispositions were
therefore on account of the respective legitimes of the compulsory heirs is
expressly borne out in the fourth paragraph of her will, immediately following
her testamentary adjudications in the third paragraph in this wise: "FOURTH:
I likewise command that in case any of those I named as my heirs in this
testament any of them shall die before I do, his forced heirs under the law
enforced at the time of my death shall inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in error. The testamentary dispositions
of the testatrix, being dispositions in favor of compulsory heirs, do not have to
be taken only from the free portion of the estate, as contended, for the second
paragraph of Article 842 of the Civil Code precisely provides that "(O)ne who
has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said
heirs." And even going by oppositors' own theory of bequests, the second
paragraph of Article 912 Civil Code covers precisely the case of the executrix-
appellee, who admittedly was favored by the testatrix with the large bulk of
her estate in providing that "(T)he 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." For
"diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate." 18 Fundamentally, of
course, the dispositions by the testatrix constituted a partition by will, which
by mandate of Article 1080 of the Civil Code and of the other cited codal
provisions upholding the primacy of the testator's last will and testament,
have to be respected insofar as they do not prejudice the legitime of the other
compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by
will is not deemed subject to collation, if the testator has not otherwise
provided, but the legitime shall in any case remain unimpaired" and invoking
of the construction thereof given by some authorities that "'not deemed
subject to collation' in this article really means not imputable to or chargeable
against the legitime", while it may have some plausibility 19 in an appropriate
case, has no application in the present case. Here, we have a case of a
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Arts 791-795, Wills and Succession

distribution and partition of the entire estate by the testatrix, without her Amado G. Salazar, for Plaintiff-Appellant.
having made any previous donations during her lifetime which would require
collation to determine the legitime of each heir nor having left merely some Sycip, Salazar, Luna & Associates, for Defendant-Appellee.
properties by will which would call for the application of Articles 1061 to 1063
of the Civil Code on collation. The amount of the legitime of the heirs is here
determined and undisputed. SYLLABUS

5. With this resolution of the decisive issue raised by oppositors-appellants,

the secondary issues are likewise necessarily resolved. Their right was merely 1. WILLS AND TESTAMENT; INTERPRETATION; INTENT OF TESTATOR MUST
to demand completion of their legitime under Article 906 of the Civil Code and GOVERN. — The intention and wishes of the testator, when clearly expressed
this has been complied with in the approved project of partition, and they can in his will, constitute the fixed law of interpretation, and all questions raised
no longer demand a further share from the remaining portion of the estate, as at the trial, relative to its execution and fulfillment, must be settled in
bequeathed and partitioned by the testatrix principally to the executrix- accordance therewith, following the plain and literal meaning of the testator’s
appellee. words, unless it clearly appears that his intention was otherwise. (In re Estate
of Calderon, 26 Phil., 233).
Neither may the appellants legally insist on their legitime being completed
with real properties of the estate instead of being paid in cash, per the
DECISION
approved project of partition. The properties are not available for the purpose,
as the testatrix had specifically partitioned and distributed them to her heirs,
and the heirs are called upon, as far as feasible to comply with and give effect
REYES, J.B.L., J.:
to the intention of the testatrix as solemnized in her will, by implementing her
manifest wish of transmitting the real properties intact to her named
beneficiaries, principally the executrix-appellee. The appraisal report of the
Subject of this direct appeal to us on points of law is the decision of the Court
properties of the estate as filed by the commissioner appointed by the lower
of First Instance of Rizal in its Civil Case No. Q-2809, dismissing plaintiff-
court was approved in toto upon joint petition of the parties, and hence, there
appellant’s complaint for the recovery of certain properties that were
cannot be said to be any question — and none is presented — as to fairness
originally owned by the plaintiff’s granduncle, Nicolas Villaflor, and which he
of the valuation thereof or that the legitime of the heirs in terms of cash has
granted to his widow, Doña Fausta Nepomuceno, bequeathing to her "su uso
been understated. The plaint of oppositors that the purchasing value of the
y posesion mientras viva y no se case en segunda nupcias."cralaw virtua1aw
Philippine peso has greatly declined since the testatrix' death in January, 1961
library
provides no legal basis or justification for overturning the wishes and intent of
the testatrix. The transmission of rights to the succession are transmitted from
The following facts appear of record: On October 9, 1908, Don Nicolas Villaflor,
the moment of death of the decedent (Article 777, Civil Code) and accordingly,
a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own
the value thereof must be reckoned as of then, as otherwise, estates would
handwriting, devising and bequeathing in favor of his wife, Doña Fausta
never be settled if there were to be a revaluation with every subsequent
Nepomuceno, one-half of all his real and personal properties, giving the other
fluctuation in the values of the currency and properties of the estate. There is
half to his brother Don Fausto Villaflor.
evidence in the record that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account of her inheritance,
Clause 6th, containing the institution of heirs, reads as
which, per the parties' manifestation, 20 "does not in any way affect the
follows:jgc:chanrobles.com.ph
adjudication made to her in the projects of partition of either party as the
same is a mere advance of the cash that she should receive in both projects of
"SEXTO: — En virtud de las facultades que me conceden las leyes, instituyo por
partition." The payment in cash by way of making the proper adjustments in
mis unicos y universales herederos de todos mis derechos y acciones a mi
order to meet the requirements of the law on non-impairment of legitimes as
hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que
well as to give effect to the last will of the testatrix has invariably been availed
partan todos mis bienes que me pertenescan, en iguales partes, para despues
of and sanctioned. 21That her co-oppositors would receive their cash
de mi muerte, exceptuando las donaciones y legados que, abajo mi mas
differentials only now when the value of the currency has declined further,
expontanea voluntad, lo hago en la forma siguiente:jgc:chanrobles.com.ph
whereas they could have received them earlier, like Bernardita, at the time of
approval of the project of partition and when the peso's purchasing value was
"SEPTIMO: — Lego para daspues de mi muerte a mi esposa Da. Fausta
higher, is due to their own decision of pursuing the present appeal.
Nepomuceno, en prueba de mi amor y cariño, los bienes, alhajas y muebles
que a continuacion se expresan;
ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.
OCTAVO: — Que estos legados disfrutara mi referida esposa Da. Fausta
Nepomuceno su uso y posesion mientras viva y no se case en segundas
nupcias; de lo contrario, pasara a ser propiedad estos dichos legados de mi
sobrina nieta Leonor Villaflor."cralaw virtua1aw library

LEONOR VILLAFLOR VDA. DE VILLANUEVA, Plaintiff-Appellant, v. DELFIN N. The 12th clause of the will provided, however, that Clauses 6th and 7th thereof
JUICO, in his capacity as judicial administrator of the testate estate of would be deemed annulled from the moment he bore any child with Doña
FAUSTA NEPOMUCENO, Defendant-Appellee. Fausta Nepomuceno. Said Clause 12th reads as follows:jgc:chanrobles.com.ph

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Arts 791-795, Wills and Succession
"DUODECIMO: — Quedan anulados los parrafos 6.o y 7.o de este testamento
que tratan de institucion de herederos y los legados que se haran despues da
mi muerte a favor de mi esposa, en el momento que podre tener la dicha de
contrar con hijo o hijos legitimos o legitimados, pues estos, conforme a ley
seran mis herederos."cralaw virtua1aw library
Don Nicolas Villaflor died on March 3, 1922, without begetting any child with
his wife Doña Fausta Nepomuceno. The latter, already a widow, thereupon
instituted Special Proceeding No. 203 of the Court of First Instance of
Zambales, for the settlement of her husband’s estate and in that proceeding,
she was appointed judicial administratrix. In due course of administration, she
submitted a project of partition, now Exhibit "E." In the order of November 24,
1924, now Exhibit "C", the probate court approved the project of partition and
declared the proceeding closed. As the project of partition, Exhibit "E", now
shows, Doña Fausta Nepomuceno received by virtue thereof the ownership
and possession of a considerable amount of real and personal estate. By virtue
also of the said project of partition, she received the use and possession of all
the real and personal properties mentioned and referred to in Clause 7th of
the will. The order approving the project of partition (Exh. "C"), however,
expressly provided that approval thereof was "sin perjuicio de lo dispuesto en
la clausula 8.0 del testamento de Nicolas Villaflor."cralaw virtua1aw library
On May 1, 1956, Doña Fausta Nepomuceno died without having contracted a
second marriage, and without having begotten any child with the deceased
Nicolas Villaflor. Her estate is now being settled in Special Proceeding No. Q-
1563 in the lower court, with the defendant Delfin N. Juico as the duly
appointed and qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the same
Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as his "sobrina
nieta Leonor Villaflor."
Plaintiff Leonor Villaflor instituted the present action against the administrator
of the estate of the widow Fausta Nepomuceno, on February 8, 1958,
contending that upon the widow’s death, said plaintiff became vested with the
ownership of the real and personal properties bequeathed by the late Nicolas
Villaflor to clause 7 of his will, pursuant to its eight (8th) clause. Defendant’s
position, adopted by the trial court, is that the title to the properties aforesaid
became absolutely vested in the widow upon her death, on account of the fact
that she never remarried.
We agree with appellant that the plain desire and intent of the testator, as
manifested in clause 8 of his testament, was to invest his widow with only a
usufruct or life tenure in the properties described in the seventh clause,
subject to the further condition (admitted by the appellee) that if the widow
remarried, her rights would thereupon cease, even during her own lifetime.
That the widow was meant to have no more than a life interest in those
properties, even if she did not remarry at all, is evident from the expressions
used by the deceased, "uso y posesion mientras viva" (use and possession
while alive), in which the first half of the phrase ("uso y posesion" instead of
"dominio" or "propriedad") reinforces the second ("mientras viva"). The
testator plainly did not give his widow the full ownership of these particular
properties, but only the right to their possession and use (or enjoyment)during
her lifetime. This is in contrast with the remainder of the estate in which she
was instituted universal heir together with the testator’s brother (clause 6).
"SEXTO: — En virtud de las facultades que me conceden las leyes, instituyo por
mis unicos y universales herederos de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que
partan todos mis bienes que me pertenescan, en igualas partes, para despues
de mi muerte, exceptuando las donaciones y legados que, abajo mi mas
expontanea voluntad, lo hago en la forma siguiente."cralaw virtua1aw library
The court below, in holding that the appellant Leonor Villaflor, as reversionary
legatee, could succeed to the properties bequeathed by clause 7 of the
testament only in the event that the widow remarried, has unwarrantedly
discarded the expression "mientras viva", and considered the words "uso y
posesion" as equivalent to "dominio" (ownership). In so doing, the trial court
violated Article 791 of the Civil Code of The Philippines, as well as section 59
of Rule 123 of the Rules of Court:jgc:chanrobles.com.ph
"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
expression inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy."cralaw virtua1aw library
"SEC. 59. Instrument construed so as to give effect to all provisions. — In the
construction of an instrument where there are several provisions or
particulars, such a construction is, if possible, to be adopted as will give effect
to all."cralaw virtua1aw library
Speculation as to the motives of the testator in imposing the conditions
contained in clause 7 of his testament should not be allowed to obscure the
clear and unambiguous meaning of his plain words, which are ever the primary
source in ascertaining his intent. It is well to note that if the testator had
intended to impose as sole condition the nonremarriage of his widow, the
words "uso y posesion mientras viva" would have been unnecessary, since the
widow could only remarry during her own lifetime.
The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889), expressly
enjoins the following:jgc:chanrobles.com.ph
"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 the will was drawn solely by the testator, and that he was unacquainted
with such technical sense. (675a)"
In consonance with this rule, this Supreme Court has laid the doctrine in In re
Estate of Calderon, 26 Phil., 233, that the intention and wishes of the testator,
when clearly expressed in his will, constitute the fixed law of interpretation,
and all questions raised at the trial, relative to its execution and fulfillment,
must be settled in accordance therewith, following the plain and literal
meaning of the testator’s words, unless it clearly appears that his intention
was otherwise. The same rule is adopted by the Supreme Court of Spain (TS.
Sent. 20 Marzo 1918; 28 Mayo 1912; 30 Abril 1913; 16 Enero 1915; 23 Oct.
1925).
"La voluntad del testador, clara, precisa y constantemente expresada al
ordenar su ultima voluntad, es ley unica, imperativa y obligatoria que han de
obedecer y cumplir fielmente albaceas, legatarios y heredera, hoy sus
sucesores, sin que esa voluntad patente, que no ha menester de
interpretaciones, pues no ofrece la menor duda, pueda sustituirse por ningun
otro criterio de alguno de los interesados, ni tampoco por el judicial." (Tribunal
P a g e 5 | 16
Arts 791-795, Wills and Succession
Supremo of Spain, Sept. 20, March 1918)
The American decisions invoked by appellee in his brief are inapplicable,
because they involve cases where the only condition imposed on the legatee
was that she should remain a widow. As already shown, the testament of Don
Nicolas Villaflor clearly and unmistakably provided that his widow should have
the possession and use of the legacies while alive and did not remarry. It
necessarily follows that by the express provisions of the 8th clause of his will,
the legacies should pass to the testator’s "sobrina-nieta", appellant herein,
upon the widow’s death, even if the widow never remarried in her lifetime.
Consequently, the widow had no right to retain or dispose of the aforesaid
properties, and her estate is accountable to the reversionary legatee for their
return, unless they had been lost due to fortuitous event, or for their value
should rights of innocent third parties have intervened.
PREMISES CONSIDERED, the decision appealed from is reversed, and the
appellant Leonor Villaflor Vda. de Villanueva is declared entitled to the
ownership and fruits of the properties described in clause 7 of the will or
testament, from the date of the death of Doña Fausta Nepomuceno. The
records are ordered remanded to the court of origin for liquidation,
accounting, and further proceedings conformably to this decision. Costs
against the administrator-appellee.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon
and De Leon, JJ., concur.
Labrador, J., did not take part.
G.R. No. L-10763 April 29, 1961
DELFIN YAMBAO, plaintiff-appellant,
vs.
ANGELINA GONZALES, ET AL., defendants-appellees.
Marcial G. Mendiola for plaintiff-appellant.
Onofre P. Guevara for defendants-appellees.
BAUTISTA ANGELO, J.:
This is an action filed by Delfin Yambao against Angelina Gonzales and Maria
Pablo praying that the latter be ordered to appoint and employ him as tenant
during his lifetime on the parcels of land bequeathed to and inherited by them
from Maria Gonzales, as well as to deliver to him the value of the harvests
belonging to him as tenant of said parcels of land. In their answer, defendants
averred that the provisions of the will relied upon by plaintiff is not mandatory;
that the determination of who should be the tenant of the land is vested in a
special court; and that the present action is not the proper remedy.
After trial, the court dismissed the complaint for lack of sufficient cause of
action. It held that the provisions of the will relied upon by plaintiff merely
amount to a suggestion to the defendants who, though morally bound, are not
legally compelled to follow said suggestion, invoking as authority Article 797
of the old Civil Code. Plaintiff has appealed.
The pertinent provisions of the will relied upon by appellant read as follows:
Dapat din naman malaman ng dalawa kong tagapagmana na sila
MARIA PABLO at ANGELINA GONZALES na sila ay may dapat
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod:
xxx xxx xxx
(2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo ng
bukid habang panahon, at ang nasabing bukid ay isasailalim ng
pamamahala ng Albasea samantalang ang bukid ay nasa usapin at
may utang pa.
It appears that on August 10, 1942, Maria Gonzales executed a will
bequeathing to appellees all her properties situated in Sta. Rosa, Laguna. The
will was probated in 1948. Immediately, thereafter, appellant went to
appellees to request that he be placed as tenant of the riceland which, by an
express provision of said will, they were directed to give to him for cultivation,
as tenant, and when they refused alleging that they had already given it to
another tenant he filed the present action.
In holding that the provisions of the will relied upon by appellant imposes only
a moral but not a legal obligation, the trial court went on to consider the
import of the word "Pahihintulutan" employed with reference to appellant. In
its opinion said word only means to permit or to allow, but not to direct
appellees to appoint appellant as tenant. Rather, it opines, it merely contains
a suggestion to employ because the testatrix did not use the words
"ipinaguutos ko" which she used in connection with other provisions of the
will, so that there is no clear indication that it was her intention to make such
provision compulsory.
We believe, however, that the trial court has not properly interpreted the real
import of the wish of the testatrix. Analyzing it carefully we will find that the
same contains a clear directive to employ appellant as may be seen from the
words preceding the word "pahihintulutan", which say: "Dapat din naman
malaman ng dalawa kong tagapagmana na sila MARIA PABLO at ANGELINA
GONZALES na sila ay may dapat TUNGKULIN O GANGPANAN GAYA ng mga
sumusunod." The words 'dapat TUNGKULIN O GANGPANAN" mean to do or to
carry out as a mandate or directive, and having reference to the word
"pahihintulutan", can convey no other meaning than to impose a duty upon
appellees. To follow the interpretation given by the trial court would be to
devoid the wish of the testatrix of its real and true meaning.
Article 797 of the old Civil Code, invoked by the trial court, is inapplicable. That
refers to an institution of an heir intended to be conditional by providing that
a statement to the effect cannot be considered as a condition unless it appears
clearly that such is the intention of the testator. We are not faced here with
any conditional institution of heirship. What we have is a clear-cut mandate
which the heirs cannot fail to carry out.
WHEREFORE, the decision appealed from is reversed. Appellees are hereby
ordered to employ appellant as tenant immediately after this decision has
become final. Costs against appellees.
Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes
and Dizon, JJ., concur.
P a g e 6 | 16
Arts 791-795, Wills and Succession
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First
Instance of Davao dated February 28, 1974, declaring illegal and void the will
of his mother, Leodegaria Julian, converting the testate proceeding into an
intestate proceeding and ordering the issuance of the corresponding notice to
creditors (Special Case No. 1808). The antecedents of the appeal are as
follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973
in Davao City at the age of sixty-seven. She was survived by her husband, Felix
Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr.,
Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban
and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973
for the probate of his mother's notarial will dated September 5, 1970 which is
written in English. In that will Leodegaria Julian declared (a) that she was the
owner of the "southern half of nine conjugal lots (par. II); (b) that she was the
absolute owner of two parcels of land which she inherited from her father
(par. III), and (c) that it was her desire that her properties should not be divided
among her heirs during her husband's lifetime and that their legitimes should
be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he
was eighty-two years old in 1973) her paraphernal lands and all the conjugal
lands (which she described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She devised and
partitioned the conjugal lands as if they were all owned by her. She disposed
of in the will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on
the grounds of lack of testamentary capacity, undue influence, preterition of
the husband and alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit
of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition
to the probate of the will and affirmed that he was interested in its probate.
On the same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and
renounced' his hereditary rights in her estate in favor of their six children. In
that same instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit
and "conformation" of Felix Balanay, Sr. were void. The lower court in its order
of June 18, 1973 "denied" the opposition and reset for hearing the probate of
the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an
order dated August 28, 1973 it appointed its branch clerk of court as special
administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June
18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the
owner of the southern half of the conjugal lots and (b) that she could not
partition the conjugal estate by allocating portions of the nine lots to her
children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros,
opposed that motion. The lower court denied it in its order of October 15,
1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaña,
Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of
record was Atty. Cabreros), filed a motion dated September 25, 1973 for
"leave of court to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate proceeding." In that
motion Montaña claimed to be the lawyer not only of the petitioner but also
of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon.
Montaña in his motion assailed the provision of the will which partitioned the
conjugal assets or allegedly effected a compromise of future legitimes. He
prayed that the probate of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of the same date
he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
comments dated October 15, 1973 manifested their conformity with the
motion for the issuance of a notice to creditors. They prayed that the will be
declared void for being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaña, assumed that the
issuance of a notice to creditors was in order since the parties had agreed on
that point. It adopted the view of Attys. Montaña and Guyo that the will was
void. So, in its order of February 28, 1974 it dismissed the petition for the
probate, converted the testate proceeding into an intestate proceeding,
ordered the issuance of a notice to creditors and set the intestate proceeding
for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of
petitioner's motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified
motion dated April 15, 1974, asked for the reconsideration of the lower court's
order of February 28, 1974 on the ground that Atty. Montaña had no authority
P a g e 7 | 16
Arts 791-795, Wills and Succession
to withdraw the petition for the allowance of the will. Attached to the motion
was a copy of a letter dated March 27, 1974 addressed to Atty. Montaña and
signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia
B. Pabaonon, wherein they terminated Montaña's services and informed him
that his withdrawal of the petition for the probate of the will was without their
consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for
reconsideration. The lower court denied the motion in its order of June 29,
1974. It clarified that it declared the will void on the basis of its own
independent assessment of its provisions and not because of Atty. Montaña's
arguments.
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.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization), the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been established.
The probate of a will might become an idle ceremony if on its face it appears
to be intrinsically void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA
1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order of February 28, 1974 that
the will was void and in converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave
effect to the surviving husband's conformity to the will and to his renunciation
of his hereditary rights which presumably included his one-half share of the
conjugal estate.
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).
The statement of the testatrix that she owned the "southern half of the
conjugal lands is contrary to law because, although she was a coowner thereof,
her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and
Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration
does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime but should be kept
intact and that the legitimes should be paid in cash is contrary to article 1080
of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate
by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her family, to keep
any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children
to whom the property is not assigned be paid in cash.
(1056a)
The testatrix in her will made a partition of the entire conjugal estate among
her six children (her husband had renounced his hereditary rights and his one-
half conjugal share). She did not assign the whole estate to one or more
children as envisaged in article 1080. Hence, she had no right to require that
the legitimes be paid in cash. On the other hand, her estate may remain
undivided only for a period of twenty years. So, the provision that the estate
should not be divided during her husband's lifetime would at most be effective
only for twenty years from the date of her death unless there are compelling
reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half
share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but
insofar as said renunciation partakes of a donation of his hereditary rights and
his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be
subject to the limitations prescribed in articles 750 and 752 of the Civil Code.
A portion of the estate should be adjudicated to the widower for his support
and maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is
intrinsically valid and the partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes. The distribution and partition
would become effective upon the death of Felix Balanay, Sr. In the meantime,
the net income should be equitably divided among the children and the
surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to
his wife's will and his renunciation of his hereditary rights, his one-half
conjugal share became a part of his deceased wife's estate. His conformity had
the effect of validating the partition made in paragraph V of the will without
prejudice, of course, to the rights of the creditors and the legitimes of the
compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making
of a will shall only pass thereby, as if the testator had it at the time of making
the will, should it expressly appear by the will that such was his intention".
Under article 930 of the Civil Code "the legacy or devise of a thing belonging
to another person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not belonging to the
testator when he made the will, afterwards becomes his, by whatever title,
the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband
intended to partition the conjugal estate in the manner set forth in paragraph
V of her will. It is true that she could dispose of by will only her half of the
conjugal estate (Art. 170, Civil Code) but since the husband, after the
P a g e 8 | 16
Arts 791-795, Wills and Succession
dissolution of the conjugal partnership, had assented to her testamentary
partition of the conjugal estate, such partition has become valid, assuming
that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her parents. Her will was intrinsically
void because it preterited her compulsory heirs in the direct line. Article 854
of the Civil Code provides that "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." Since the preterition of the parents annulled the
institution of the sister of the testatrix and there were no legacies and devises,
total intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët
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. .
It results that the lower court erred in not proceeding with the probate of the
will as contemplated in its uncancelled order of June 18, 1973. Save in an
extreme case where the will on its face is intrinsically void, it is the probate
court's duty to pass first upon the formal validity of the will. Generally, the
probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74
Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967,
21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported
testament is in itself prima facie proof that the supposed testator has willed
that his estate should be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given effect
independent of the attitude of the parties affected thereby" (Resolution, Vda.
de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and
principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561,
June 30, 1970, 33 SCRA 554, 561). 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).
Testacy is favored. Doubts are resolved in favor of testacy especially where the
will evinces an intention on the part of the testator to dispose of practically his
whole estate. So compelling is the principle that intestacy should be avoided
and that the wishes of the testator should prevail that sometimes the language
of the will can be varied for the purpose of giving it effect (Austria vs. Reyes,
L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be
followed and the dispositions of the properties in his will should be upheld
(Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his
will because any disposition therein is better than that which the law can make
(Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice
to creditors although no executor or regular administrator has been
appointed. The record reveals that it appointed a special administrator. A
notice to creditors is not in order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the
court shall issue a notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and
not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the
claims against the estate and to pay such claims when duly allowed (See. 10,
Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment
of its branch clerk of court as special administrator (p. 30, Rollo) is not a
salutary practice because it might engender the suspicion that the probate
Judge and his clerk of court are in cahoots in milking the decedent's estate.
Should the branch clerk of court commit any abuse or devastavit in the course
of his administration, the probate Judge might find it difficult to hold him to a
strict accountability. A court employee should devote his official time to his
official duties and should not have as a sideline the administration of a
decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are
set aside and its order of June 18, 1973, setting for hearing the petition for
probate, is affirmed. The lower court is directed to conduct further
proceedings in Special Case No. 1808 in consonance with this opinion. Costs,
against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.
G.R. No. L-14074 November 7, 1918
In the matter of the probation of the will of Jose Riosa.
MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in the Philippine Islands the
law existing on the date of the execution of a will, or the law existing at the
death of the testator, controls.
Jose Riosa died on April 17, 1917. He left a will made in the month of January,
1908, in which he disposed of an estate valued at more than P35,000. The will
was duly executed in accordance with the law then in force, namely, section
P a g e 9 | 16
Arts 791-795, Wills and Succession
618 of the Code of Civil Procedure. The will was not executed in accordance
with Act No. 2645, amendatory of said section 618, prescribing certain
additional formalities for the signing and attestation of wills, in force on and
after July 1, 1916. In other words, the will was in writing, signed by the
testator, and attested and subscribed by three credible witnesses in the
presence of the testator and of each other; but was not signed by the testator
and the witnesses on the left margin of each and every page, nor did the
attestation state these facts. The new law, therefore, went into effect after
the making of the will and before the death of the testator, without the
testator having left a will that conforms to the new requirements.
Section 618 of the Code of Civil Procedure reads:
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.
The attestation shall state the fact that the testator signed the will,
or caused it to be signed by some other person, at his express
direction, in the presence of three witnesses, and that they attested
and subscribed it in his presence and in the presence of each other.
But the absence of such form of attestation shall not render the will
invalid if it is proven that the will was in fact signed and attested as
in this section provided.
Act No. 2645 has amended section 618 of the Code of Civil Procedure so as to
make said section read as follows:
SEC. 618. Requisites of will. — 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 written in the language or
dialect known by the testator and signed by him, 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.
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, on the left margin, and said pages
shall be numbered correlatively in letters placed on the upper part
of each sheet. The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the testator and of each
other.
This court has heretofore held in a decision handed down by the Chief
Justice, as to a will made after the date Act No. 2645 went into effect, that it
must comply with the provisions of this law. (Caraig vs Tatlonghari, R. G. No.
12558, dated March 23, 1918 [not published].) The court has further held in a
decision handed down by Justice Torres, as to will executed by a
testator whose death took place prior to the operative date of Act No. 2645,
that the amendatory act is inapplicable. (Bona vs. Briones, [1918], 38 Phil.,
276.) The instant appeal presents an entirely different question. The will was
execute prior to the enactment of Act No. 2645 and the death occurred after
the enactment of this law.
There is a clear cleavage of authority among the cases and the text-writers, as
to the effect of a change in the statutes prescribing the formalities necessary
to be observed in the execution of a will, when such change is made
intermediate to the execution of a will and the death of a testator.
(See generally 40 Cyc., 1076. and any textbook on Wills, and Lane's Appeal
from Probate [1889], 57 Conn., 182.) The rule laid down by the courts in many
jurisdictions is that the statutes in force at the testator's death are controlling,
and that a will not executed in conformity with such statutes is invalid,
although its execution was sufficient at the time it was made. The reasons
assigned for applying the later statute are the following: "As until the death of
the testator the paper executed by him, expressing his wishes, is not a will, but
a mere inchoate act which may or may not be a will, the law in force at the
testator's death applies and controls the proof of the will."
(Sutton vs. Chenault [1855], 18 Ga., 1.) Were we to accept the foregoing
proposition and the reasons assigned for it, it would logically result that the
will of Jose Riosa would have to be held invalid.
The rule prevailing in many other jurisdictions is that the validity of the
execution of a will must be tested by the statutes in force at the time of its
execution and that statutes subsequently enacted have no retrospective
effect. This doctrine is believed to be supported by the weight of authority. It
was the old English view; in Downs (or Downing) vs. Townsend (Ambler, 280),
Lord Hardwicke is reported to have said that "the general rule as to testaments
is, that the time of the testament, and not the testator's death, is regarded."
It is also the modern view, including among other decisions one of the
Supreme Court of Vermont from which State many of the sections of the Code
if Civil Procedure of the Philippine Islands relating to wills are taken.
(Giddings vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies, the opinion by the learned
Justice Sharswood (Taylor vs.Mitchell [1868], 57 Pa. St., 209) is regarded to be
the best considered. In this opinion is found the following:
Retrospective laws generally if not universally work injustice, and
ought to be so construed only when the mandate of the legislature
is imperative. When a testator makes a will, formally executed
according to the requirements of the law existing at the time of its
execution, it would unjustly disappoint his lawful right of disposition
to apply to it a rule subsequently enacted, though before his death.
While it is true that every one is presumed to know the law, the
maxim in fact is inapplicable to such a case; for he would have an
equal right to presume that no new law would affect his past act,
and rest satisfied in security on that presumption. . . . It is true, that
every will is ambulatory until the death of the testator, and the
disposition made by it does not actually take effect until then.
General words apply to the property of which the testator dies
possessed, and he retains the power of revocation as long as he
lives. The act of bequeathing or devising, however, takes place when
the will is executed, though to go into effect at a future time.
A third view, somewhat larger in conception than the preceding one, finding
support in the States of Alabama and New York, is that statutes relating to the
execution of wills, when they increase the necessary formalities, should be
construed so as not to impair the validity of a will already made and, when
P a g e 10 | 16
Arts 791-795, Wills and Succession
they lessen the formalities required, should be construed so as to aid wills
defectively executed according to the law in force at the time of their making
(Hoffman vs. Hoffman, [1855], 26 Ala., 535; Price vs. Brown, 1 Bradf., Surr.
N.Y., 252.)
This court is given the opportunity to choose between the three rules above
described. Our selection, under such circumstances, should naturally depend
more on reason than on technicality. Above all, we cannot lose sight of the
fact that the testator has provided in detail for the disposition of his property
and that his desires should be respected by the courts. Justice is a powerful
pleader for the second and third rules on the subject.
The plausible reasoning of the authorities which back the first proposition is,
we think, fallacious. The act of bequeathing or devising is something more
than inchoate or ambulatory. In reality, it becomes a completed act when the
will is executed and attested according to the law, although it does not take
effect on the property until a future time.lawphil.net
It is, of course, a general rule of statutory construction, as this court has said,
that "all statutes are to be construed as having only a prospective operation
unless the purpose and intention of the Legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the
language used. In every case of doubt, the doubt must be resolved against the
restrospective effect." (Montilla vs. Corporacion de PP. Agustinos [1913], 24
Phil., 220. See also Chew Heong vs. U.S. [1884], 112 U.S., 536; U.S. vs American
Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as found in the Civil Code, is
corroborative; article 3 thereof provides that "laws shall not have a retroactive
effect, unless therein otherwise prescribed." The language of Act No. 2645
gives no indication of retrospective effect. Such, likewise, has been the
uniform tendency of the Supreme Court of the Philippine Islands on cases
having special application to testamentary succession. (Abello vs. Kock de
Monaterio [1904], 3 Phil., 558; Timbol vs. Manalo [1906], 6 Phil., 254;
Bona vs. Briones, supra; In the Matter of the Probation of the Will of Bibiana
Diquiña [1918], R. G. No. 13176, 1 concerning the language of the Will. See
also section 617, Code of Civil Procedure.)
The strongest argument against our accepting the first two rules comes out of
section 634 of the Code of Civil Procedure which, in negative terms, provides
that a will shall be disallowed in either of five cases, the first being "if not
executed and attested as in this Act provided." Act No. 2645 has, of course,
become part and parcel of the Code of Civil Procedure. The will in question is
admittedly not executed and attested as provided by the Code of Civil
Procedure as amended. Nevertheless, it is proper to observe that the general
principle in the law of wills inserts itself even within the provisions of said
section 634. Our statute announces a positive rule for the transference of
property which must be complied with as completed act at the time of the
execution, so far as the act of the testator is concerned, as to all testaments
made subsequent to the enactment of Act No. 2645, but is not effective as to
testaments made antecedent to that date.
To answer the question with which we began this decision, we adopt as our
own the second rule, particularly as established by the Supreme Court of
Pennsylvania. The will of Jose Riosa is valid.
The order of the Court of First Instance for the Province of Albay of December
29, 1917, disallowing the will of Jose Riosa, is reversed, and the record shall be
returned to the lower court with direction to admit the said will to probate,
without special findings as to costs. So ordered.
Arellano, C.J., Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.
G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for
appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu,
executed a document purporting to be his Last Will and Testament now
marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943,
in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left
properties estimated at P8,000 in value. On October 2, 1946, one Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in
the Court of First Instance of Cebu. Some cousins and nephews who would
inherit the estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being dead,
testified without contradiction that in his presence and in the presence of his
co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish
which the testator spoke and understood; that he (testator) signed on he left
hand margin of the front page of each of the three folios or sheets of which
the document is composed, and numbered the same with Arabic numerals,
and finally signed his name at the end of his writing at the last page, all this, in
the presence of the three attesting witnesses after telling that it was his last
will and that the said three witnesses signed their names on the last page after
the attestation clause in his presence and in the presence of each other. The
oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a holographic will;
that it was in the handwriting of the testator and that although at the time it
was executed and at the time of the testator's death, holographic wills were
not permitted by law still, because at the time of the hearing and when the
case was to be decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view, and to carry
out the intention of the testator which according to the trial court is the
controlling factor and may override any defect in form, said trial court by order
dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and
Testament of Father Sancho Abadia. The oppositors are appealing from that
decision; and because only questions of law are involved in the appeal, the
case was certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof provides
that a person may execute a holographic will which must be entirely written,
dated and signed by the testator himself and need not be witnessed. It is a
fact, however, that at the time that Exhibit "A" was executed in 1923 and at
the time that Father Abadia died in 1943, holographic wills were not
permitted, and the law at the time imposed certain requirements for the
P a g e 11 | 16
Arts 791-795, Wills and Succession

execution of wills, such as numbering correlatively each page (not folio or executes a will which is invalid for failure to observe and follow the legal
sheet) in letters and signing on the left hand margin by the testator and by the requirements at the time of its execution then upon his death he should be
three attesting witnesses, requirements which were not complied with in regarded and declared as having died intestate, and his heirs will then inherit
Exhibit "A" because the back pages of the first two folios of the will were not by intestate succession, and no subsequent law with more liberal
signed by any one, not even by the testator and were not numbered, and as requirements or which dispenses with such requirements as to execution
to the three front pages, they were signed only by the testator. should be allowed to validate a defective will and thereby divest the heirs of
their vested rights in the estate by intestate succession. The general rule is that
Interpreting and applying this requirement this Court in the case of In re Estate the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-
of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his 193).
witnesses to sign on the left hand margin of every page, said:
In view of the foregoing, the order appealed from is reversed, and Exhibit "A"
. . . . This defect is radical and totally vitiates the testament. It is not is denied probate. With costs.
enough that the signatures guaranteeing authenticity should appear
upon two folios or leaves; three pages having been written on, the Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador,
authenticity of all three of them should be guaranteed by the Concepcion and Reyes J.B.L., JJ., concur.
signature of the alleged testatrix and her witnesses.
[G.R. No. L-5064. February 27, 1953.]
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same
requirement, this Court declared: BIENVENIDO A. IBARLE, Plaintiff-Appellant, v. ESPERANZA, M.
PO, Defendant-Appellee.
From an examination of the document in question, it appears that
the left margins of the six pages of the document are signed only by Quirico del Mar for Appellant.
Ventura Prieto. The noncompliance with section 2 of Act No. 2645
by the attesting witnesses who omitted to sign with the testator at Daniel P. Tumulak and Conchita F. Miel for Appellee.
the left margin of each of the five pages of the document alleged to
be the will of Ventura Prieto, is a fatal defect that constitutes an
obstacle to its probate. SYLLABUS

What is the law to apply to the probate of Exh. "A"? May we apply the
1. DESCENT AND DISTRIBUTION; TRANSMISSION TO HEIRS, FROM MOMENT
provisions of the new Civil Code which not allows holographic wills, like Exhibit
OF DEATH; SALE MADE BY WIDOW OF DECEDENT’S PROPERTY. — The moment
"A" which provisions were invoked by the appellee-petitioner and applied by
of death is the determining factor when the children of a decedent acquire a
the lower court? But article 795 of this same new Civil Code expressly provides:
definite right to the inheritance, whether such right be pure or contingent. No
"The validity of a will as to its form depends upon the observance of the law in
formal or judicial declaration is needed to confirm the children’s title. Sale
force at the time it is made." The above provision is but an expression or
made by the widow of the decedent’s property after his death is null and void
statement of the weight of authority to the affect that the validity of a will is
so far as it included the children’s share.
to be judged not by the law enforce at the time of the testator's death or at
the time the supposed will is presented in court for probate or when the
2. ID.; SALE OF DECEDENT’S PROPERTY, WITH COURT’S AUTHORITY; NECESSITY
petition is decided by the court but at the time the instrument was executed.
OF REGISTRATION OF SALE. — Sale made of decedent’s property with
One reason in support of the rule is that although the will operates upon and
authority of the competent court is legal and effective even if not registered.
after the death of the testator, the wishes of the testator about the disposition
of his estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the legacy or bequest
DECISION
then becomes a completed act. This ruling has been laid down by this court in
the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and
should be followed.
TUASON, J.:

Of course, there is the view that the intention of the testator should be the
ruling and controlling factor and that all adequate remedies and
interpretations should be resorted to in order to carry out said intention, and
that when statutes passed after the execution of the will and after the death
of the testator lessen the formalities required by law for the execution of wills,
said subsequent statutes should be applied so as to validate wills defectively
executed according to the law in force at the time of execution. However, we
should not forget that from the day of the death of the testator, if he leaves a
will, the title of the legatees and devisees under it becomes a vested right,
protected under the due process clause of the constitution against a
subsequent change in the statute adding new legal requirements of execution
of wills which would invalidate such a will. By parity of reasoning, when one
This action was commenced in the Court of First Instance of Cebu to annul a
deed of sale conveying to the defendant, in consideration of P1,700, one
undivided half of a parcel of land which previously had been sold, along with
the other half, by the same vendor to the plaintiff’s grantors. Judgment was
against the plaintiff.
The case was submitted for decision upon an agreed statement of facts, the
pertinent parts of which are thus summarized in the appealed
decision:jgc:chanrobles.com.ph
P a g e 12 | 16
Arts 791-795, Wills and Succession
"1st. — That Leonard J. Winstantley and Catalina Navarro were husband and
wife, the former having died on June 6, 1946 leaving as heir the surviving
spouse and some minor children;
"2nd. — That upon the death of L. J. Winstanley, he left a parcel of land
described under Transfer Certificate of title No. 2391 of the Registry of Deeds
of the Province of Cebu;
"3rd. — That the above mentioned property was a conjugal property;
"4th. — That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de
Winstanley sold the entire parcel of land to the spouses Maria Canoy and
Roberto Canoy, alleging among other things, that she needed money for the
support of her children;
"5th. — That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy
sold the same parcel of land to the plaintiff in this case named Bienvenido A.
Ebarle;
"6th. — That the two deeds of sale referred to above were not registered and
have never been registered up to date;
"7th. — That on January 17, 1948 surviving spouse Catalina Navarro Vda. de
Winstanley, after her appointment as guardian of her children by this court
(Special Proceeding No. 212-R) sold one-half of the land mentioned above to
Esperanza M. Po, defendant in the instant case, which portion belongs to the
children of the above named spouses."cralaw virtua1aw library
As stated by the trial Judge, the sole question for determination is the validity
of the sale to Esperanza M. Po, the last purchaser. This question in turn
depends upon the validity of the prior sale to Maria Canoy and Roberto Canoy.
Article 657 of the old Civil Code provides: "The rights to the succession of a
person are transmitted from the moment of his death." In a slightly different
language, this article is incorporated in the new Civil Code as article 777.
Manresa, commending on article 657 of the Civil Code of Spain,
says:jgc:chanrobles.com.ph
"The moment of death is the determining factor when the heirs acquire a
definite right to the inheritance, whether such right be pure or contingent. It
is immaterial whether a short or long period of time lapses between the death
of the predecessor and the entry into possession of the property of the
inheritance because the right is always deemed to be retroactive from the
moment of death." (5 Manresa, 317.)
The above provision and comment make it clear that when Catalina Navarro
Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it
already belonged to the seller’s children. No formal or judicial declaration
being needed to confirm the children’s title, it follows that the first sale was
null and void in so far as it included the children’s share.
On the other hand, the sale to the defendant having been made by authority
of the competent court was undeniably legal and effective. The fact that it has
not been recorded is of no consequence. If registration were necessary, still
the non-registration would not avail the plaintiff because it was due to no
other cause than his own opposition.
The decision will be affirmed subject to the reservation, made in said decision,
of the right of the plaintiff and/or the Canoy spouses to bring such action
against Catalina Navarro Vda. de Winstanley as may be appropriate for such
damages as they may have incurred by reason of the voiding of the sale in their
favor.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista
Angelo and Labrador, JJ., concur.
[G.R. NO. 147145 : January 31, 2005]
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-
NOBLE, Petitioner, v.ALIPIO ABAJA and NOEL ABELLAR, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a Petition for Review 1 assailing the Decision2 of the Court
of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals
sustained the Resolution3 of the Regional Trial Court of Kabankalan, Negros
Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will
and testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died
sometime in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of
First Instance of Negros Occidental (now RTC-Kabankalan) a
petition,5 docketed as SP No. 070 (313-8668), for the probate of the last will
and testament ("will") of Abada. Abada allegedly named as his testamentary
heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio
is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on the ground that
Abada left no will when he died in 1940. Caponong further alleged that the
will, if Abada really executed it, should be disallowed for the following reasons:
(1) it was not executed and attested as required by law; (2) it was not intended
as the last will of the testator; and (3) it was procured by undue and improper
pressure and influence on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged intestate heirs of Abada, namely,
Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada
("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela
Tronco ("Levi Tronco, et al."), also opposed the petition. The oppositors are
the nephews, nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition6 before the RTC-
Kabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will
and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al.
opposed the petition on the same grounds they cited in SP No. 070 (313-8668).
P a g e 13 | 16
Arts 791-795, Wills and Succession
On 20 September 1968, Caponong filed a petition7 before the RTC-
Kabankalan, docketed as SP No. 069 (309), praying for the issuance in his name
of letters of administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate
the will of Toray. Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of Toray's will became final
and executory.8
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble ("Caponong-Noble") Special Administratrix of the estate of
Abada and Toray.9 Caponong-Noble moved for the dismissal of the petition for
probate of the will of Abada. The RTC-Kabankalan denied the motion in an
Order dated 20 August 1991.10
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S.
Layumas discovered that in an Order dated 16 March 1992, former Presiding
Judge Edgardo Catilo had already submitted the case for decision. Thus, the
RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there
is substantial compliance with the formalities of a Will as the law directs and
that the petitioner through his testimony and the deposition of Felix Gallinero
was able to establish the regularity of the execution of the said Will and
further, there being no evidence of bad faith and fraud, or substitution of the
said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is
admitted and allowed probate.
As prayed for by counsel, Noel Abbellar11 is appointed administrator of the
estate of Paula Toray who shall discharge his duties as such after letters of
administration shall have been issued in his favor and after taking his oath and
filing a bond in the amount of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada
shall continue discharging her duties as such until further orders from this
Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their
motions to dismiss the petition for probate, that is, whether the will of Abada
has an attestation clause as required by law. The RTC-Kabankalan further held
that the failure of the oppositors to raise any other matter forecloses all other
issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed
the Resolution of the RTC-Kabankalan. The appellate court found that the RTC-
Kabankalan properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary
public;13
3. Whether the will must expressly state that it is written in a language or
dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and if so, whether the
attestation clause complies with the requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising the issue of whether
the will of Abada is written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the will of
Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting
to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure14 which governed the execution of wills before the enactment of
the New Civil Code.
The matter in dispute in the present case is the attestation clause in the will
of Abada. Section 618 of the Code of Civil Procedure, as amended by Act No.
2645,15 governs the form of the attestation clause of Abada's will.16 Section
618 of the Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. - No will, except as provided in the preceding
section,17 shall be valid to pass any estate, real or personal, nor charge or
affect the same, unless it be written in the language or dialect known by the
testator and signed by him, 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. 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, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used, upon which the will
is written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of three witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will are
the following:
P a g e 14 | 16
Arts 791-795, Wills and Succession
(1) The will must be written in the language or dialect known by the testator;
(2) The will must be signed by the testator, or by the testator's name written
by some other person in his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and the
instrumental witnesses of the will must sign each and every page of the will on
the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on
the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages used, upon which
the will is written, and the fact that the testator signed the will and every page
of the will, or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the witnesses witnessed and
signed the will and all pages of the will in the presence of the testator and of
each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is
written in a language or dialect known to the testator. Further, she maintains
that the will is not acknowledged before a notary public. She cites in particular
Articles 804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect
known to the testator.
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of the New Civil
Code.19 Article 804 of the Old Civil Code is about the rights and obligations of
administrators of the property of an absentee, while Article 806 of the Old Civil
Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of
the New Civil Code is taken from Section 618 of the Code of Civil
Procedure.20 Article 806 of the New Civil Code is taken from Article 685 of the
Old Civil Code21 which provides:
Art. 685. The notary and two of the witnesses who authenticate the will must
be acquainted with the testator, or, should they not know him, he shall be
identified by two witnesses who are acquainted with him and are known to
the notary and to the attesting witnesses. The notary and the witnesses shall
also endeavor to assure themselves that the testator has, in their judgment,
the legal capacity required to make a will.
Witnesses authenticating a will without the attendance of a notary, in cases
falling under Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil
Code. Under the Code of Civil Procedure, the intervention of a notary is not
necessary in the execution of any will.23 Therefore, Abada's will does not
require acknowledgment before a notary
public.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Caponong-Noble points out that nowhere in the will can one discern that
Abada knew the Spanish language. She alleges that such defect is fatal and
must result in the disallowance of the will. On this issue, the Court of Appeals
held that the matter was not raised in the motion to dismiss, and that it is now
too late to raise the issue on appeal. We agree with Caponong-Noble that the
doctrine of estoppel does not apply in probate proceedings.24 In addition, the
language used in the will is part of the requisites under Section 618 of the Code
of Civil Procedure and the Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Noble's contention must still fail. There is no
statutory requirement to state in the will itself that the testator knew the
language or dialect used in the will.25 This is a matter that a party may establish
by proof aliunde.26 Caponong-Noble further argues that Alipio, in his
testimony, has failed, among others, to show that Abada knew or understood
the contents of the will and the Spanish language used in the will. However,
Alipio testified that Abada used to gather Spanish-speaking people in their
place. In these gatherings, Abada and his companions would talk in the Spanish
language.27 This sufficiently proves that Abada speaks the Spanish language.
The Attestation Clause of Abada's Will
A scrutiny of Abada's will shows that it has an attestation clause. The
attestation clause of Abada's will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado
en nuestra presencia en el margen izquierdo de todas y cada una de las hojas
del mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en
presencia de nosotros y del testador al pie de este documento y en el margen
izquierdo de todas y cada una de las dos hojas de que esta compuesto el
mismo, las cuales estan paginadas correlativamente con las letras "UNO" y
"DOS' en la parte superior de la carrilla.28
Caponong-Noble proceeds to point out several defects in the attestation
clause. Caponong-Noble alleges that the attestation clause fails to state the
number of pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de todas y
cada una de las dos hojas de que esta compuesto el mismo" which means "in
the left margin of each and every one of the two pages consisting of the same"
shows that the will consists of two pages. The pages are numbered
correlatively with the letters "ONE" and "TWO" as can be gleaned from the
phrase "las cuales estan paginadas correlativamente con las letras "UNO" y
"DOS."
Caponong-Noble further alleges that the attestation clause fails to state
expressly that the testator signed the will and its every page in the presence
of three witnesses. She then faults the Court of Appeals for applying to the
present case the rule on substantial compliance found in Article 809 of the
New Civil Code.29
The first sentence of the attestation clause reads: "Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el
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Arts 791-795, Wills and Succession

margen izquierdo de todas y cada una de las hojas del mismo." The English
translation is: "Subscribed and professed by the testator Alipio Abada as his
last will and testament in our presence, the testator having also signed it in
our presence on the left margin of each and every one of the pages of the
same." The attestation clause clearly states that Abada signed the will and its
every page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does
not indicate the number of witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial compliance in determining
the number of witnesses. While the attestation clause does not state the
number of witnesses, a close inspection of the will shows that three witnesses
signed it.
This Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. In Dichoso de Ticson v. De Gorostiza,30 the
Court recognized that there are two divergent tendencies in the law on wills,
one being based on strict construction and the other on liberal construction.
In Dichoso, the Court noted that Abangan v. Abangan,31 the basic case on the
liberal construction, is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her
argument while the respondent, contending that the rule on strict
construction should apply, also cited a long series of cases to support his view.
The Court, after examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible,
which would be applicable to all cases. More than anything else, the facts and
circumstances of record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular execution of the will,
and the instrument appears to have been executed substantially in accordance
with the requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. x x x.
An attestation clause is made for the purpose of preserving, in permanent
form, a record of the facts attending the execution of the will, so that in case
of failure of the memory of the subscribing witnesses, or other casualty, they
may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore,
should not be rejected where its attestation clause serves the purpose of the
law. x x x 33 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
missing details that should appear in the will
itself.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
They only permit a probe into the will, an exploration within 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.34 (Emphasis supplied)ςrαlαωlιbrαrÿ
The phrase "en presencia de nosotros" or "in our presence" coupled with the
signatures appearing on the will itself and after the attestation clause could
only mean that: (1) Abada subscribed to and professed before the three
witnesses that the document was his last will, and (2) Abada signed the will
and the left margin of each page of the will in the presence of these three
witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and
all its pages in the presence of the testator and of each other. This Court has
ruled:
Precision of language in the drafting of an attestation clause is desirable.
However, it is not imperative that a parrot-like copy of the words of the statute
be made. It is sufficient if from the language employed it can reasonably be
deduced that the attestation clause fulfills what the law expects of it.35
The last part of the attestation clause states "en testimonio de ello, cada uno
de nosotros lo firmamos en presencia de nosotros y del testador." In English,
this means "in its witness, every one of us also signed in our presence and of
the testator." This clearly shows that the attesting witnesses witnessed the
signing of the will of the testator, and that each witness signed the will in the
presence of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January
2001 in CA-G.R. CV No. 47644.
SO ORDERED.

We rule to apply the liberal construction in the probate of Abada's will.

Abada's will clearly shows four signatures: that of Abada and of three other
persons. It is reasonable to conclude that there are three witnesses to the will.
The question on the number of the witnesses is answered by an examination
of the will itself and without the need for presentation of evidence aliunde.
The Court explained the extent and limits of the rule on liberal construction,
thus:

[T]he so-called liberal rule 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

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