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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14003             August 5, 1960
FEDERICO AZAOLA, petitioner-appellant, 
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in
its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a
holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S.
Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of
the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all
the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general
power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that
there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the
testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein
are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the
holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again whether the penmanship referred to in the
previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely
say it is hers"; that it was also established in the proceedings that the assessed value of the property of the
deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her
last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as
appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who
could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity
was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than
one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our
present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a
holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who
can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the
testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to
give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that
no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply
the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino 
vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal
that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number
of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the
 Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available li
inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Sc
(Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion d
siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le il
acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcenden
lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor garantia de
los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testig
modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo esti
conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son pregun
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a p
failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandator
Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said
, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional
evidence, including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, w
instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No cost
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

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FIRST DIVISION
[G.R. No. 123486. August 12,
1999]
EUGENIA RAMONAL CODOY,
and MANUEL RAMONAL, 
petitioners, vs. EVANGELINE
R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA
PATIGAS,Respondents.
DECISION
PARDO, J.:
Before us is a petition for
review on certiorari of the
decision of the Court of
Appeals1 and its resolution
denying reconsideration,
ruling:
Upon the unrebutted
testimony of appellant
Evangeline Calugay and
witness Matilde Ramonal
Binanay, the authenticity of
testators holographic will has
been established and the
handwriting and signature
therein (exhibit S) are hers,
enough to probate said will.
Reversal of the judgment
appealed from and the probate
of the holographic will in
question be called for. The rule
is that after plaintiff has
completed presentation of his
evidence and the defendant
files a motion for judgment on
demurrer to evidence on the
ground that upon the facts and
the law plaintiff has shown no
right to relief, if the motion is
granted and the order to
dismissal is reversed on appeal
, the movant loses his right to
present evidence in his behalf
(Sec. 1 Rule 35 Revised Rules
of Court). Judgment may,
therefore, be rendered for
appellant in the instant case.
Wherefore, the order appealed
from is REVERSED and
judgment rendered allowing
the probate of the holographic
will of the testator Matilde Seo
Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline
Calugay, Josephine Salcedo
and Eufemia Patigas, devisees
and legatees of the
holographic will of the
deceased Matilde Seo Vda. de
Ramonal, filed with the
Regional Trial Court, Misamis
Oriental, Branch 18, a petition
3 for probate of the

holographic will of the

deceased, who died on
January 16, 1990.
In the petition, respondents
claimed that the deceased
Matilde Seo Vda. de Ramonal,
was of sound and disposing
mind when she executed the
will on August 30, 1978, that
there was no fraud, undue
influence, and duress
employed in the person of the
testator, and the will was
written voluntarily.
The assessed value of the
decedents property, including
all real and personal property
was about P400,000.00, at the
time of her death.4cräläwvirtualibräry

On June 28, 1990, Eugenia

Ramonal Codoy and Manuel
Ramonal filed an opposition5
 to the petition for probate,
alleging that the holographic
will was a forgery and that the
same is even illegible. This
gives an impression that a
third hand of an interested
party other than the true hand
of Matilde Seo Vda. de
Ramonal executed the
holographic will.
Petitioners argued that the
repeated dates incorporated or
appearing on the will after
every disposition is out of the
ordinary. If the deceased was
the one who executed the will,
and was not forced, the dates
and the signature should
appear at the bottom after the
dispositions, as regularly done
and not after every disposition.
And assuming that the
holographic will is in the
handwriting of the deceased, it
was procured by undue and
improper pressure and
influence on the part of the
beneficiaries, or through fraud
and trickery.
Respondents presented six (6)
witnesses and various
documentary evidence.
Petitioners instead of
presenting their evidence, filed
a demurrer6 to evidence,
claiming that respondents
failed to establish sufficient
factual and legal basis for the
probate of the holographic will
of the deceased Matilde Seo
Vda. de Ramonal.
On November 26, 1990, the
lower Court issued an order,
the dispositive portion of which
reads:
WHEREFORE, in view of the
foregoing consideration, the
Demurrer to Evidence having
being well taken, same is
granted, and the petition for
probate of the document (
Exhibit S) on the purported
Holographic Will of the late
Matilde Seo Vda. de Ramonal,
is denied for insufficiency of
evidence and lack of merits.7
On December 12, 1990,
respondents filed a notice of
appeal,8 and in support of
their appeal, the respondents
once again reiterated the
testimony of the following
witnesses, namely: (1)
Augusto Neri; (2) Generosa
Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (
5) Fiscal Rodolfo Waga; and (6
) Evangeline Calugay.
To have a clear understanding
of the testimonies of the
witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court,
Court of First Instance of
Misamis Oriental, where the
special proceedings for the
probate of the holographic will
of the deceased was filed. He
produced and identified the.
records of the case. The
documents presented bear the
signature of the deceased,
Matilde Seo Vda. de Ramonal,
for the purpose of laying the
basis for comparison of the
handwriting of the testatrix,
with the writing treated or
admitted as genuine by the
party against whom the
evidence is offered.
Generosa Senon, election
registrar of Cagayan de Oro,
was presented to produce and
identify the voters affidavit of
the decedent. However, the
voters affidavit was not
produced for the same was
already destroyed and no
longer available.
Matilde Ramonal Binanay,
testified that the deceased
Matilde Seo Vda. de Ramonal
was her aunt, and that after
the death of Matildes husband,
the latter lived with her in her
parents house for eleven (11)
years, from 1958 to 1969.
During those eleven (11)
years of close association with
the deceased, she acquired
familiarity with her signature
and handwriting as she used
to accompany her (deceased
Matilde Seo Vda. de Ramonal)
in collecting rentals from her
various tenants of commercial
buildings, and the deceased
always issued receipts. In
addition to this, she (witness
Matilde Binanay) assisted the
deceased in posting the
records of the accounts, and
carried personal letters of the
deceased to her creditors.
Matilde Ramonal
Binanay further testified that
at the time of the death of
Matilde Vda. de Ramonal, she
left a holographic will dated
August 30, 1978, which was
personally and entirely written,
dated and signed, by the
deceased and that all the
dispositions therein, the dates,
and the signatures in said will,
were that of the deceased.
Fiscal Rodolfo Waga testified
that before he was appointed
City Fiscal of Cagayan de Oro,
he was a practicing lawyer,
and handled all the pleadings
and documents signed by the
deceased in connection with
the intestate proceedings of
her late husband, as a result
of which he is familiar with the
handwriting of the latter. He
testified that the signature
appearing in the holographic
will was similar to that of the
deceased, Matilde Seo Vda. de
Ramonal, but he can not be
sure.
The fifth witness presented
was Mrs. Teresita Vedad, an
employee of the Department
of Environment and Natural
Resources, Region 10. She
testified that she processed
the application of the deceased
for pasture permit and was
familiar with the signature of
the deceased, since the
deceased signed documents in
her presence, when the latter
was applying for pasture
permit.
Finally, Evangeline Calugay,
one of the respondents,
testified that she had lived
with the deceased since birth,
and was in fact adopted by the
latter. That after a long period
of time she became familiar
with the signature of the
deceased. She testified that
the signature appearing in the
holographic will is the true and
genuine signature of Matilde
Seo Vda. de Ramonal.
The holographic will which was
written in Visayan, is
translated in English as
follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal
Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be
given 1,500 square meters at
Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided
among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1)
hectare land at Mandumol,
Indahag to Evangeline R.
Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square
Meters at Sta. Cruz Ramonal
Village in favor of Evangeline R
. Calugay, Helen must
continue with the Sta. Cruz,
once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband
Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order
that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court
of Appeals, rendered decision9
 ruling that the appeal was
meritorious. Citing the decision
in the case of Azaola vs.
Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L.
Reyes, a recognized authority
in civil law, the Court of
Appeals held:
x x x even if the genuineness
of the holographic will were
contested, we are of the
opinion that Article 811 of our
present civil code can not be
interpreted as to require the
compulsory presentation of
three witnesses to identify the
handwriting of the testator,
under penalty of having the
probate denied. Since no
witness may have been
present at the execution of the
holographic will, none being
required by law (art. 810, new
civil code), it becomes obvious
that the existence of witnesses
possessing the requisite
qualifications is a matter
beyond the control of the
proponent. For it is not merely
a question of finding and
producing any three witnesses;
they must be witnesses who
know the handwriting and
signature of the testator and
who can declare (truthfully, of
course, even if the law does
not express) that the will and
the signature are in the
handwriting of the testator.
There may be no available
witness acquainted with the
testators hand; or even if so
familiarized, the witness may
be unwilling to give a positive
opinion. Compliance with the
rule of paragraph 1 of article
811 may thus become an
impossibility. That is evidently
the reason why the second
paragraph of article 811
prescribes that
in the absence of any
competent witness referred to
in the preceding paragraph,
and if the court deems it
necessary, expert testimony
may be resorted to.
As can be seen, the law
foresees the possibility that no
qualified witness may be found
(or what amounts to the same
thing, that no competent
witness may be willing to
testify to the authenticity of
the will), and provides for
resort to expert evidence to
supply the deficiency.
It may be true that the rule of
this article (requiring that
three witnesses be presented
if the will is contested and only
one if no contest is had) was
derived from the rule
established for ordinary
testaments (CF Cabang vs.
Delfinado, 45 PHIL 291;
Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored
that the requirement can be
considered mandatory only in
case of ordinary testaments,
precisely because the
presence of at least three
witnesses at the execution of
ordinary wills is made by law
essential to their validity (Art.
805). Where the will is
holographic, no witness
need be present (art.10),
and the rule requiring
production of three
witnesses must be deemed
merely permissive if absurd
results are to be avoided.
Again, under Art.811, the
resort to expert evidence is
conditioned by the words if the
court deem it necessary, which
reveal that what the law
deems essential is that the
court should be convinced of
the wills authenticity. Where
the prescribed number of
witnesses is produced and the
court is convinced by their
testimony that the will is
genuine, it may consider it
unnecessary to call for expert
evidence. On the other hand,
if no competent witness is
available, or none of those
produced is convincing, the
court may still, and in fact it
should resort to handwriting
experts. The duty of the court,
in fine, is to exhaust all
available lines of inquiry, for
the state is as much interested
as the proponent that the true
intention of the testator be
carried into effect.
Paraphrasing Azaola vs.
Singson, even if the
genuineness of the
holographic will were
contested, Article 811 of the
civil code cannot be
interpreted as to require the
compulsory presentation of
three witnesses to identify the
handwriting of the testator,
under penalty of the having
the probate denied. No
witness need be present in the
execution of the holographic
will. And the rule requiring
the production of three
witnesses is merely
permissive. What the law
deems essential is that the
court is convinced of the
authenticity of the will. Its
duty is to exhaust all available
lines of inquiry, for the state is
as much interested in the
proponent that the true
intention of the testator be
carried into effect. And
because the law leaves it to
the trial court to decide if
experts are still needed, no
unfavorable inference can be
drawn from a partys failure to
offer expert evidence, until
and unless the court expresses
dissatisfaction with the
testimony of the lay witnesses.
10

According to the Court of

Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and
other witnesses definitely and
in no uncertain terms testified
that the handwriting and
signature in the holographic
will were those of the testator
herself.
Thus, upon the unrebutted
testimony of appellant
Evangeline Calugay and
witness Matilde Ramonal
Binanay, the Court of Appeals
sustained the authenticity of
the holographic will and the
handwriting and signature
therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the
following issues:
(1) Whether or not the ruling
of the case of Azaola vs.
Singson, 109 Phil. 102, relied
upon by the respondent Court
of Appeals, was applicable to
the case.
(2) Whether or not the Court
of Appeals erred in holding
that private respondents had
been able to present credible
evidence to prove that the
date, text, and signature on
the holographic will were
written entirely in the hand of
the testatrix.
(3) Whether or not the Court
of Appeals erred in not
analyzing the signatures in the
holographic will of Matilde Seo
Vda. de Ramonal.
In this petition, the petitioners
ask whether the provisions of
Article 811 of the Civil Code
are permissive or mandatory.
The article provides, as a
requirement for the probate of
a contested holographic will,
that at least three witnesses
explicitly declare that the
signature in the will is the
genuine signature of the
testator.
We are convinced, based on
the language used, that Article
811 of the Civil Code is
mandatory. The word shall
connotes a mandatory order.
We have ruled that shall in a
statute commonly denotes an
imperative obligation and is
inconsistent with the idea of
discretion and that the
presumption is that the word
shall, when used in a statute is
mandatory.11 cräläwvirtualibräry

Laws are enacted to achieve a

goal intended and to guide
against an evil or mischief that
aims to prevent. In the case at
bar, the goal to achieve is to
give effect to the wishes of the
deceased and the evil to be
prevented is the possibility
that unscrupulous individuals
who for their benefit will
employ means to defeat the
wishes of the testator.
So, we believe that the
paramount consideration in
the present petition is to
determine the true intent of
the deceased. An exhaustive
and objective consideration of
the evidence is imperative to
establish the true intent of the
testator.
It will be noted that not all the
witnesses presented by the
respondents testified explicitly
that they were familiar with
the handwriting of the testator.
In the case of Augusto Neri,
clerk of court, Court of First
Instance, Misamis Oriental, he
merely identified the record of
Special Proceedings No. 427
before said court. He was not
presented to declare explicitly
that the signature appearing in
the holographic was that of
the deceased.
Generosa E. Senon, the
election registrar of Cagayan
de Oro City, was presented to
identify the signature of the
deceased in the voters
affidavit, which was not even
produced as it was no longer
available.
Matilde Ramonal Binanay, on
the other hand, testified that:
Q. And you said for eleven (11
) years Matilde Vda de
Ramonal resided with your
parents at Pinikitan, Cagayan
de Oro City. Would you tell the
court what was your
occupation or how did Matilde
Vda de Ramonal keep herself
busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and
commercial buildings at
Pabayo-Gomez streets.12
xxx
Q. Who sometime accompany
her?
A. I sometimes accompany her
Q. In collecting rentals does
she issue receipts?
A. Yes, sir.13
xxx
Q. Showing to you the receipt
dated 23 October 1979, is this
the one you are referring to as
one of the receipts which she
issued to them?
A. Yes, sir.
Q. Now there is that signature
of Matilde vda. De Ramonal,
whose signature is that Mrs.
Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is
a signature of Matilde vda. De
Ramonal?
A. I am familiar with her
signature.
Q. Now, you tell the court Mrs.
Binanay, whether you know
Matilde vda de Ramonal kept
records of the accounts of her
tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post
a record of accounts in behalf
of Matilde Vda. De Ramonal.
Q. How is this record of
accounts made? How is this
reflected?
A. In handwritten.14
xxx
Q. In addition to collection of
rentals, posting records of
accounts of tenants and deed
of sale which you said what
else did you do to acquire
familiarity of the signature of
Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.15
xxx
Q. You testified that at the
time of her death she left a will
. I am showing to you a
document with its title tugon is
this the document you are
referring to?
A. Yes, sir.
Q. Showing to you this exhibit
S, there is that handwritten
tugon, whose handwriting is
this?
A. My aunt.
Q. Why do you say this is the
handwriting of your aunt?
A. Because I am familiar with
her signature.16
What Ms. Binanay saw were
pre-prepared receipts and
letters of the deceased, which
she either mailed or gave to
her tenants. She did not
declare that she saw the
deceased sign a document or
write a note.
Further, during the cross-
examination, the counsel for
petitioners elicited the fact
that the will was not found in
the personal belongings of the
deceased but was in the
possession of Ms. Binanay.
She testified that:
Q. Mrs. Binanay, when you
were asked by counsel for the
petitioners if the late Matilde
Seno vda de Ramonal left a
will you said, yes?
A. Yes, sir.
Q. Who was in possession of
that will?
A. I.
Q. Since when did you have
the possession of the will?
A. It was in my mothers
possession.
Q. So, it was not in your
possession?
A. Sorry, yes.
Q. And when did you come
into possession since as you
said this was originally in the
possession of your mother?
A. 1985.17
xxx
Q. Now, Mrs. Binanay was
there any particular reason
why your mother left that will
to you and therefore you have
that in your possession?
A. It was not given to me by
my mother, I took that in the
aparador when she died.
Q. After taking that document
you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also
evident that Ms. Binanay kept
the fact about the will from
petitioners, the legally adopted
children of the deceased. Such
actions put in issue her motive
of keeping the will a secret to
petitioners and revealing it
only after the death of Matilde
Seo Vda. de Ramonal.
In the testimony of Ms.
Binanay, the following were
established:
Q. Now, in 1978 Matilde Seno
Vda de Ramonal was not yet a
sickly person is that correct?
A. Yes, sir.
Q. She was up and about and
was still uprightly and she
could walk agilely and she
could go to her building to
collect rentals, is that correct?
A. Yes, sir.19
xxx
Q. Now, let us go to the third
signature of Matilde Ramonal.
Do you know that there are
retracings in the word Vda.?
A. Yes, a little. The letter L is
continuous.
Q. And also in Matilde the
letter L is continued to letter D
?
A. Yes, sir.
Q. Again the third signature of
Matilde Vda de Ramonal the
letter L in Matilde is continued
towards letter D.
A. Yes, sir.
Q. And there is a retracing in
the word Vda.?
A. Yes, sir.20
xxx
Q. Now, that was 1979,
remember one year after the
alleged holographic will. Now,
you identified a document
marked as Exhibit R. This is
dated January 8,1978 which is
only about eight months from
August 30,1978. Do you notice
that the signature Matilde Vda
de Ramonal is beautifully
written and legible?
A. Yes, sir the handwriting
shows that she was very
exhausted.
Q. You just say that she was
very exhausted while that in
1978 she was healthy was not
sickly and she was agile. Now,
you said she was exhausted?
A. In writing.
Q. How did you know that she
was exhausted when you were
not present and you just tried
to explain yourself out
because of the apparent
inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed
this signature dated 1978, the
same year as the alleged
holographic will. In exhibit I,
you will notice that there is no
retracing; there is no
hesitancy and the signature
was written on a fluid
movement. x x x And in fact ,
the name Eufemia R. Patigas
here refers to one of the
petitioners?
A. Yes, sir.
Q. You will also notice Mrs.
Binanay that it is not only with
the questioned signature
appearing in the alleged
holographic will marked as
Exhibit X but in the
handwriting themselves, here
you will notice the hesitancy
and tremors, do you notice
that?
A. Yes, sir.21
Evangeline Calugay declared
that the holographic will was
written, dated and signed in
the handwriting of the testator.
She testified that:
Q. You testified that you
stayed with the house of the
spouses Matilde and Justo
Ramonal for the period of 22
years. Could you tell the court
the services if any which you
rendered to Matilde Ramonal?
A. During my stay I used to go
with her to the church, to the
market and then to her
transactions.
Q. What else? What services
that you rendered?
A. After my college days I
assisted her in going to the
bank, paying taxes and to her
lawyer.
Q. What was your purpose of
going to her lawyer?
A. I used to be her personal
driver.
Q. In the course of your stay
for 22 years did you acquire
familiarity of the handwriting
of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you
acquired familiarity?
A. Because I lived with her
since birth.22
xxx
Q. Now, I am showing to you
Exhibit S which is captioned
tugon dated Agosto 30, 1978
there is a signature here below
item No. 1, will you tell this
court whose signature is this?
A. Yes, sir, that is her
signature.
Q. Why do you say that is her
signature?
A. I am familiar with her
signature.23
So, the only reason that
Evangeline can give as to why
she was familiar with the
handwriting of the deceased
was because she lived with her
since birth. She never declared
that she saw the deceased
write a note or sign a
document.
The former lawyer of the
deceased, Fiscal Waga,
testified that:
Q. Do you know Matilde Vda
de Ramonal?
A. Yes, sir I know her because
she is my godmother the
husband is my godfather.
Actually I am related to the
husband by consanguinity.
Q. Can you tell the name of
the husband?
A. The late husband is Justo
Ramonal.24
xxx
Q. Can you tell this court
whether the spouses Justo
Ramonal and Matilde Ramonal
have legitimate children?
A. As far as I know they have
no legitimate children.25
xxx
Q. You said after becoming a
lawyer you practice your
profession? Where?
A. Here in Cagayan de Oro
City.
Q. Do you have services
rendered with the deceased
Matilde vda de Ramonal?
A. I assisted her in terminating
the partition, of properties.
Q. When you said assisted,
you acted as her counsel? Any
sort of counsel as in what case
is that, Fiscal?
A. It is about the project
partition to terminate the
property, which was under the
court before.26
xxx
Q. Appearing in special
proceeding no. 427 is the
amended inventory which is
marked as exhibit N of the
estate of Justo Ramonal and
there appears a signature over
the type written word Matilde
vda de Ramonal, whose
signature is this?
A. That is the signature of
Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose
signature is this?
A. This one here that is the
signature of Mrs. Matilde vda
de Ramonal.27
xxx
Q. Aside from attending as
counsel in that Special
Proceeding Case No. 427 what
were the other assistance
wherein you were rendering
professional service to the
deceased Matilde Vda de
Ramonal?
A. I can not remember if I
have assisted her in other
matters but if there are
documents to show that I
have assisted then I can recall.
28

xxx
Q. Now, I am showing to you
exhibit S which is titled tugon,
kindly go over this document,
Fiscal Waga and tell the court
whether you are familiar with
the handwriting contained in
that document marked as
exhibit S?
A. I am not familiar with the
handwriting.
Q. This one, Matilde Vda de
Ramonal, whose signature is
this?
A. I think this signature here it
seems to be the signature of
Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is
that signature here of Matilde
Vda de Ramonal, can you tell
the court whose signature is
this?
A. Well, that is similar to that
signature appearing in the
project of partition.
Q. Also in item no. 3 there is
that signature Matilde Vda de
Ramonal, can you tell the
court whose signature is that?
A. As I said, this signature also
seems to be the signature of
Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity
in the way it is being written.
Q. How about this signature in
item no. 4, can you tell the
court whose signature is this?
A. The same is true with the
signature in item no. 4. It
seems that they are similar.29
xxx
Q. Mr. Prosecutor, I heard you
when you said that the
signature of Matilde Vda de
Ramonal Appearing in exhibit
S seems to be the signature of
Matilde vda de Ramonal?
A. Yes, it is similar to the
project of partition.
Q. So you are not definite that
this is the signature of Matilde
vda de Ramonal. You are
merely supposing that it
seems to be her signature
because it is similar to the
signature of the project of
partition which you have made
?
A. That is true.30
From the testimonies of these
witnesses, the Court of
Appeals allowed the will to
probate and disregard the
requirement of three
witnesses in case of contested
holographic will, citing the
decision in Azaola vs. Singson,
31 ruling that the requirement
is merely directory and not
mandatory.
In the case of Ajero vs. Court
of Appeals,32 we said that the
object of the solemnities
surrounding the execution of
wills is to close the door
against bad faith and fraud, to
avoid substitution of wills and
testaments and to guaranty
their truth and authenticity.
Therefore, the laws on this
subject should be interpreted
in such a way as to attain
these primordial ends. But, on
the other hand, also one must
not lose sight of the fact that
it is not the object of the law
to restrain and curtail the
exercise of the right to make a
will.
However, we cannot eliminate
the possibility of a false
document being adjudged as
the will of the testator, which
is why if the holographic will is
contested, that law requires
three witnesses to declare that
the will was in the handwriting
of the deceased.
The will was found not in the
personal belongings of the
deceased but with one of the
respondents, who kept it even
before the death of the
deceased. In the testimony of
Ms. Binanay, she revealed that
the will was in her possession
as early as 1985, or five years
before the death of the
deceased.
There was no opportunity for
an expert to compare the
signature and the handwriting
of the deceased with other
documents signed and
executed by her during her
lifetime. The only chance at
comparison was during the
cross-examination of Ms.
Binanay when the lawyer of
petitioners asked Ms. Binanay
to compare the documents
which contained the signature
of the deceased with that of
the holographic will and she is
not a handwriting expert. Even
the former lawyer of the
deceased expressed doubts as
to the authenticity of the
signature in the holographic
will.
A visual examination of the
holographic will convince us
that the strokes are different
when compared with other
documents written by the
testator. The signature of the
testator in some of the
disposition is not readable.
There were uneven strokes,
retracing and erasures on the
will.
Comparing the signature in
the holographic will dated
August 30, 1978,33 and the
signatures in several
documents such as the
application letter for pasture
permit dated December 30,
1980,34 and a letter dated
June 16, 1978,35 the strokes
are different. In the letters,
there are continuous flows of
the strokes, evidencing that
there is no hesitation in writing
unlike that of the holographic
will. We, therefore, cannot be
certain that the holographic
will was in the handwriting by
the deceased.
IN VIEW WHEREOF, the
decision appealed from is SET
ASIDE. The records are
ordered remanded to the court
of origin with instructions to
allow petitioners to adduce
evidence in support of their
opposition to the probate of
the holographic will of the
deceased Matilde Seo Vda. de
Ramonal.
No costs.
SO ORDERED.
Davide Jr., C.J., (Chairman),
Puno, Kapunan, and Ynares-
Santiago, JJ., concur.
Endnotes:
1 In CA-G.R. CV No. 31365, promulgated on October 9,
1995, Justice Pedro A. Ramirez, ponente, Justices
Angelina Sandoval Gutierrez and Conrado M. Vasquez,
Jr., concurring, CA Rollo, pp. 83-92.
2 Decision, Court of Appeals Records, pp. 83-93.
3 Original Records, Petition, pp. 1-7.
4 Ibid., p. 4.
5 Original Record, Opposition, pp. 13-17.
6 Demurrer to Evidence, pp. 140-155, October 13,
1990.
7 Original Records, Order, p. 192.
8 Ibid., Notice of Appeal (November 29, 1990), p. 194.
9 Court of Appeals Rollo, Decision, pp. 83-92.
10  Ibid.
11 Pioneer Texturing Corporation v. National Labor
Relations Commission, 280 SCRA 806 [1997]; see also
Director of Lands v. Court of Appeals, 276 SCRA 276 [
1997]; Cecilleville Realty and Service Corporation v.
 Court of Appeals, 278 SCRA 819 [1997]; Baranda v.
Gustilo, 165 SCRA 757 [1988].
12  TSN, September 5, 1990, p. 23.
13  Ibid., p. 24.
14  TSN, September 5, 1990, pp. 24-26.
15  Ibid., pp. 28-29.
16  TSN, September 5, 1990, pp. 28-29.
17  TSN, September 5, 1990, p. 48.
18  TSN, September 5, 1990, p.49.
19  TSN, p. 62.
20  TSN, pp. 58-59.
21  TSN, pp. 64-66.
22  TSN, September 27, 1990, pp. 145-147.
23  TSN, p. 148.
24  TSN, September 6, 1990, p. 74.
25  Ibid
26  TSN, September 6, 1990, pp. 76-77.
 27 Ibid.
28 TSN, September 6, 1990, pp. 79-80.
29 TSN, pp. 80-82.
30 TSN, September 6, 1990, pp. 83-84.
31 Supra.
32 236 SCRA 489 [1994].
33 Original Record, Exhibit S, p. 101.
34 Ibid., Exhibit T, p. 103.
35 Ibid., Exhibit V, p. 105.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12190             August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, 

vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.

Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving
properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate
of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa
bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. 5 Bahagi

.............................................

Fausto E. Gan 2 Bahagi

.........................................................

Rosario E. Gan 2 Bahagi

.........................................................

Filomena Alto 1 Bahagi

..........................................................

Beatriz Alto 1 Bahagi

..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si
Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin
sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto.
At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any
testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will.
A seventy-page motion for reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to
make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in
transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street,
Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her
niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a
distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will,
again in the presence of Felina Esguerra, who read it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which
was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and
being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him
but not before she had taken the purse to the toilet, opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her
death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950
husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred,
she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (
Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower
floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the
patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique,
constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on
that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if
according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she
executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and
read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and
Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her
purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse
from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not
have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous
effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but
they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We
deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the
opposition but on the strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190
) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will
which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be
made in or out of the Philippines, and need not be witnessed."

This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901
to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to
attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence
of the testator and of each other.

The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills,
to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp.
No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for
allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec.
5, Rule 77). If there is, the three must testify, if available. (Cabang vs.Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742
). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness
and authenticity of the testament, and the circumstances its due execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at
any time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a holographic will" says
the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their
opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present
other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased.
(Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of
the document, whether the will submitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And
then the only guaranty of authenticity3— the testator's handwriting — has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly
seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not
in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's
hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof
, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to
examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the
deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to
them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a
move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his
statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the
contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence the
testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which
could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 — an
implied admission that such loss or theft renders it useless..

This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it
and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was
written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be
filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires
that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement
they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the
face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the
Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it
authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which
they should not be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of
June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of
the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and
testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal
declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil,
que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con
expression del año, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos
esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se 
desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en
via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos
ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos
escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el
obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda.
(Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will,
unless they are shown his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y
Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and
of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their
lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of
the will.

Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all
good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "
accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of
the unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be
added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which
they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses
would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the
dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending
her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so
was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted
by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct"
proof required by Rule 77, sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

Footnotes
1  Now a member of the Court of Appeals.
2  The contents of the alleged will are for the purposes of this decision, immaterial.
3 "Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra del testador." (
Scaevola, Codigo Civil, Tomo 12, p. 348.)
4 V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho Civil Español (1944) Tomo
4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.
5  V. Sanchez Roman Op. Cit. Vol. 6, p. 357.
6  Manresa, Codigo Civil, 1932, Vol. 5, p. 481.
7 We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply to our New
Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills, i.e., those known to the
Spanish Civil Law, before Act 190.
8 Perhaps it may be proved by a photographic or photostatic copy. Evena mimeographed or carbon copy; or by
other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court.
9  We are aware of some American cases that admitted lost holographic wills, upon verbal testimony. (Sec. 41,
American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed. Anyway it is safer to follow
, in this matter, the theories of the Spanish law.
10  Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very title. The validity of these
wills depends, exclusively on the authenticity of handwriting, and if writing standards are not procurable, or not
contemporaneous, the courts are left to the mercy of the mendacity of witnesses. It is questionable whether the
recreation of the holographic testament will prove wise." (Lawyer's Journal, Nov. 30, 1950, pp. 556-557.)
11  Intestate of Suntay, 50 Off. Gaz., 5321.

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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner
-appellant, 
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules
of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of
the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death
and was not intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it
would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and
 (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by
law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275).
Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss
the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and
improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February
23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and
settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition
for the probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic
wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity
of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while
Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the original of the will could not be located
shows to our mind that the decedent had discarded before his death his allegedly missing Holographic
Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of
fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY
A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH
THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic
copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However,
if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best
and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may
be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL.
509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "
Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity
of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner, 
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, 
respondents.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K.
Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will
executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory,
do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church,
and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my
memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10,
1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the
Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole
heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI
reported that the handwriting, the signature, the insertions and/or additions and the initial were made by
one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the
alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of
the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel
to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor
was it impliedly understood, that the oppositors would be in estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full
signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby
denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the
denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied
in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no
necessity for interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration,
ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not the original unaltered text after
subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been
noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by
substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in
the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate
it in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will,
which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As
Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was
derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo
puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la
forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia
de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el
testador la enmienda del guarismo ultimo del año en que fue extendido3 (Emphasis ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby
affirmed in toto. No costs.

SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual finding that the
peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her brother Gregorio's name as sole
heir and "sole executrix" were made by the testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead of consulting her lawyer and writing an entirely new
holographic wig in order to avoid any doubts as to her change of heir. It should be noted that the first alteration crossing out "
sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.) Probate of
the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since the same was not duly authenticated by
the full signature of the executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to her intestate estate.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual finding that the
peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her brother Gregorio's name as sole
heir and "sole executrix" were made by the testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead of consulting her lawyer and writing an entirely new
holographic wig in order to avoid any doubts as to her change of heir. It should be noted that the first alteration crossing out "
sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.) Probate of
the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since the same was not duly authenticated by
the full signature of the executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to her intestate estate.

Footnotes
 1 Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain of April 4,
1895.

2 Comentarios al Codigo Civil Español, Quinta edicion, Tomo 5, Lib. III — Tit. III — Cap. I — Art. 688; pag.
483.

3 Ibid.

The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner, 

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on May 4, 1973 in CA G.R. No.
36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of
the last will and testament of the deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of
Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel
Gabriel and designating therein petitioner as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of
Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is
likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of
the deceased, and that private respondent, with her husband and children, lived with the deceased at the latters residence prior
an- d up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on the
15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including the
pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased
Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages. The attestation clause, which is
found on page four, reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing
kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati
na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang
panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at
bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng
lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't
dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria
R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961 Highway 54,
Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left
margin of all the other pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "
Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the
rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies in
specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa,
Andrea, Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described
in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na
anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal already acquired, or
to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the
deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported wilt the decedent lacked testamentary
capacity due to old age and sickness; and in the second alternative

4. That the purported WW was procured through undue and improper pressure and influence on the part
of the principal beneficiary, and/or of some other person for her benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo rendered judgment, the
summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds:

1. That there is no iota of evidence to support the contentio that the purported will of the deceased was
procured through undue and improper pressure and influence on the part of the petitioner, or of some
other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time of the alleged execution of
the purported will, the deceased lacked testamentary capacity due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the
deceased was not executed and attested as required by law;

4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the
purported win allegedly dictated by the deceased, executed and signed by her, and attested by her three
attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament of the
deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal
was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon consideration
of the evidence adduced by both parties, rendered the decision now under review, holding that the will in question was signed and
executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as
required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was opposed 4 by
petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda, 5 and on August 28, 1973,
respondent Court, Former Special First Division, by Resolution 6denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the supposed last wig
and testament of Isabel Gabriel was not executed in accordance with law because the same was signed
on several occasions, that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.

The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of
the evidence. We have carefully re-examined the oral and documentary evidence of record, There is no
reason to alter the findings of fact in the decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion and/or
acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court. The Court, after
deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues
raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We denied the petition
by Resolution on November 26, 1973, 9 the question raised being factual and for insufficient showing that the findings of fact by
respondent Court were unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10 which private
respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed.
Finally, on March 27, 1974, We resolved to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law
when there was absolutely no proof that the three instrumental witnesses were credible witness

II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the win Exhibit "F",
was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and residence certificates
of the witnesses as to enable him to type such data into the document Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan" and
"Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have dictated the
wilt Exhibit "F , without any note or document, to Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically present when the
Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and
Maria Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the win
was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses (
subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in rejecting said
testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual course
of judicial proceedings, as to call for an exercise of the power of supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last will
and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence, at
the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the factual findings of the
Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-
22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72
SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of 
Chan vs. CA, this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that the
jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals was in
disagreement with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact ...

Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on
appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly because its premises
are borne out by the record or based upon substantial evidence and what is more, when such findings are correct. Assignments
of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal
questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court
of Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the trial court, a minute
scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule We have thus
stated above is not without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F",
was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were
credible witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a
credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest
and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "
competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by
Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled
and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to
the execution of wills while Article 821 sets forth the disqualification from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb,
and able to read and write, may be a witness to the execution of a will mentioned in article 806 of this
Code. "Art. 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good
standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his
testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the
Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it
must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the same
meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be supported by
two character witnesses who must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of
the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act
and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications
necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law
(Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or
testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down in
the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya
and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of
Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of
unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another,
While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his
qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the
attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible
witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a
competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the instrumental
witnesses are credible in themselves, that is, that they are of good standing in the community since one was a family driver by
profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and
his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But
the relation of employer and employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo,
Off. Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the Civil
Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article 820 which says "may
be Q witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar
as witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that "Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the
death of the testator, still the provisions of the lost wig must be clearly and distinctly proved by at least two credible witnesses. '
Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay. " emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same Code of
Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb
and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in our New Civil Code
of 1950, under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a win, does not disqualify
one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental
capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence.
There is a long line of authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other cause. Historical
Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol.
10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of
Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).

Expression 'credible witness' in relation to attestation of wins means 'competent witness that is, one
competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs.
First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible
witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to
testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined
as of the date of the execution of the will and not of the timr it is offered for probate, Smith vs. Goodell 101
N.E. 255, 256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent witnesses — that is, such
 persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity,
interest, or the commission of crimes, or other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art.
820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises from the belief and
conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it
is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to
testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe
his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be
credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the
witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable,
for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses
must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We,
therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the
fact that the witnesses were "credible witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact of
the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in finding that
Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type
such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten words "
pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding
that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the picture takings
as proof that the will was improperly executed, and in holding that the grave contradictions, evasions and misrepresentations of
the witnesses (subscribing and notary) presented by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the findings of fact of the appellate
court are binding and controlling which We cannot review, subject to certain exceptions which We win consider and discuss
hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the evidence on record
. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation and execution of the win and that it was coincidental that Atty.
Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the visit of
Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no prior appointment with him,
but he explained that he was available for any business transaction on that day and that Isabel Gabriel had earlier requested him
to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not
only informed on the morning of the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that
he was going to witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband
Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's
office, which testimonies are recited in the respondent Court's decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence
certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on
April 14, 1961. The respondent Court correctly observed that there was nothing surprising in these facts and that the securing of
these residence certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses to the execution of
Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the
deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from the Navotas
residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house
in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where
Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano
Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was executed on April 15,
1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if she really wanted to
execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (
Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of sound and
disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel
Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty.
Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates of
the witnesses as to enable him to type such data into the document Exhibit ' L which the petitioner assails as contradictory and
irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and
their respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated
by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We cannot
agree with petitioner's contention. We find no contradiction for the, respondent Court held that on the occasion of the will making
on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior
occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such data appear in
the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial
will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public document executed and
attested through the intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by
petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten
words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the
same occasion merits Our approval because tills conclusion is supported and borne out by the evidence found by the appellate
court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued" and place issued the
only name of Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal appears
to be in typewritten form while the names, residence tax certificate numbers, dates and places of issuance of said certificates
pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even
the sale must be made to close relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph 5 of Exhibit F was not given and the numbers of the
certificates of title were only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of a special
proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends that it was
incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering
that Isabel Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a brain injury
caused by two severe blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can
rule that this is a finding of fact which is within the competency of the respondent appellate court in determining the
testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears to be
fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularly
active in her business affairs as she actively managed the affairs of the movie business ISABELITA Theater, paying the
aparatistas herself until June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of
Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the win
was in Tagalog, a dialect known and understood by her and in the light of all the circumstances, We agree with the respondent
Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three attesting
witnesses and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and documentary is, according to the
respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the
testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear,
thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically present when the will was signed by
Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that
Orobia's admission that she gave piano lessons to the child of the appellant on Wednesdays and Saturdays and that April 15,
1961 happened to be a Saturday for which reason Orobia could not have been present to witness the will on that — day is purely
conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every Wednesday and Saturday
without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which
reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano lessons and
had to make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and
there was nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15, 1961 and
that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the will, the documentary
evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove
such fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name
thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde
Orobia signed is the best evidence as to the date of signing because it preserves in permanent form a recital of all the material
facts attending the execution of the will. This is the very purpose of the attestation clause which is made for the purpose of
preserving in permanent form a record of the facts attending the execution of the will, so that in case of failure in the memory of
the subscribing witnesses, or other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez,
68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue importance
to the picture-takings as proof that the win was improperly executed, We agree with the reasoning of the respondent court that: "
Matilde Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and
Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to
lapse of time. The law does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia
mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was present when the
will was signed because what matters here is not the photographer but the photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held: "The trial court gave undue
importance to the picture takings, jumping therefrom to the conclusion that the will was improperly executed. The evidence
however, heavily points to only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia
, Celso Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion.
Hence, their Identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was
superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of
Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the insistence of Isabel
Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless. What
was important was that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We agree with the
Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of the legal
requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective testimonies
before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions, evasions and
misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso
which he described as "elite" which to him meant big letters which are of the type in which the will was typewritten but which was
Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde
Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr.— these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such that by themselves would not alter the probative
value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected
that the testimony of every person win be Identical and coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach us "that contradictions of witnesses generally
occur in the details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all those who witness an incident are impressed in like manner, it is
but natural that in relating their impressions, they should not agree in the minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent appellate
court because the trial court was in a better position to weigh and evaluate the evidence presented in the course of the trial. As a
general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of Appeals to review, alter
and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that facts and
circumstances of weight and influence have been ignored and overlooked and the significance of which have been
misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based on
conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses hes peculiarly within the
province of trial courts and generally, the appellate court should not interfere with the same. In the instant case, however, the
Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances established in the
record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated
her will without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the
same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial court
gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed and
that there is nothing in the entire record to support the conclusion of the court a quo that the will signing occasion was a mere
coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will, then it
becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction
over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is conclusive
as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that among the exceptions are:
(1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each other as
required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso
Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of
P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr.
Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be
made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote down the
dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what he wrote
as dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the document, he read it to her
and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the
three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of
the document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her
name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of
Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the
bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel Gabriel,
Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and
at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty.
Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution
and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel,
Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit "H",
showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the three attesting witnesses
until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not controverted
that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared
and ratified the will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the will,
Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was incredible. This ruling
of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus: "Nothing in the
record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On
the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that
other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes with the evidence —
which the trial court itself believed was unshaken — that Isabel Gabriel was of sound disposing memory when she executed her
will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wish to
be interred according to Catholic rites the second was a general directive to pay her debts if any; the third provided for P1,000.00
for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth was the institution of
the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties; the
sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of
such properties to anyone except in extreme situations in which judgment is based on a misapprehension of facts; (5) when the
findings of fact are conflicting, (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967
).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated above.
We likewise hold that the findings of fact of the respondent appellate court are fully supported by the evidence on record. The
conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no misapprehension of
facts. The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court
of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal and it must be applied
in the case at bar in its full force and effect, without qualification or reservation. The above holding simply synthesize the
resolutions we have heretofore made in respect ' to petitioner's previous assignments of error and to which We have disagreed
and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted properly
and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for the exercise of the
power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of the
trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is unassailable
that: "From the welter of evidence presented, we are convinced that the will in question was executed on April 15, 1961 in the
presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with
Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act, then
delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days following the
signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the
lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told her that this cannot
be done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was
performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will,
their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who
constitute the best evidence of the will making have testified in favor of the probate of the will. So has the lawyer who prepared it,
one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who
stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been identified on the will
and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final
analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and revise the findings of
facts of the respondent Court of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner.

SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ., concur.

#Footnotes

1 Penned by then Acting Presiding Justice Juan P. Enriquez, concurred in by Associate Justices Mateo
Canonoy and Ramon C. Fernandez.

* Justice Ramon C. Fernandez, a member of the First Division, took no part.

2 Annex "B", Petition; Rollo, Vol. I, pp. 81-101.

3 Annexes " H " and " I ", Petition; Rollo, Vol. I, pp. 154.

4 Annex "K", Petition; Ro 0, Vol- 1, pp. 167-198.

5 Annexes "L" and "M", Petition; Rollo, Vol. I, pp. 199- 248.

6 Penned by Associate Justice Ramon C. Fernandez, and con- curred in by Associate Justices Cecili
Munoz Palma and Mateo Canonoy.

7 Annex "N", Petition; Rollo, Vol. 1, pp. 250-251.

8 Rollo, Vol. II, pp. 270-312.

9 Rollo, Vol. II, p. 317.

10 Rollo, Vol. II, pp. 323-354.

11 ROLLO, Vol. II, pp 363-385.

12 The citation of authorities which begins with Mamuyac vs. Abena 67 Phil. 289 (1939) lists some 35
leading cases up to Ran drez Tel Corp. vs, Bank of America, L-22614, Aug. 29, 1969, 29 SCRA 191.

13 De Garcia vs. Court of Appeals, 37 SCRA 129 (1971); Bunyi vs. Reyes, 39 SCRA 504 (1971); Napolis vs.
Court of Appeals, 43 SCRA 301 (1972); Talosig vs. Vda. de Nieba 43 SCRA 472 (1972); Evangelista and Co
. vs. Abad Santos, 51 SCRA 416 (1973); Tiongco 9. de la Merced, 58 SCRA 89 (1974).
The Lawphil Project - Arellano Law Foundation

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 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32328 September 30, 1977

TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO DE MOLO, petitioners-appellants 
vs.
FELINO MALOTO and FELINO MALOTO, oppositors-appellees.

Ramon C. Zamora, Lorenzo E. Coloso, Jose L. Castigador, Arthur Defensor & Sixto Demaisip and Flores, Macapagal, Ocampo &
Balbastro for petitioners-appellants.

Nacianceno G. Rico & Felipe G. Espinosa for oppositors-appellees.

FERNANDEZ, J.:

This is a petition to review the order dated April 13, 1970 of the Court of First Instance of Iloilo, Branch III, in Special Proceeding
No. 2176 dismissing the petition for the probate of a will. 1

One Adriana Maloto died on October 20, 1963 in Iloilo City, her place of residence.

Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto, niece and nephews, respectively, of Adriana
Maloto, in the belief that decedent died intestate, commenced on November 4, 1963 in the Court of First Instance of iloilo an
intestate proceeding docketed as Special Proceeding No. 1736. In the course of said intestate proceeding, Aldina Maloto
Casiano, Constancio Maloto, Panfilo Maloto and Felino Maloto executed an extrajudicial Partition of the estate of Adriana Maloto
on February 1, 1964 whereby they adjudicated said estate unto themselves in the proportion of one-fourth (1/4) share for each. 2
 The Court of First Instance of iloilo, then prescribed by Judge Emigdio V. Nietes, ed he diamond partition on March approve
extrajudicial on March 21, 1964. 3

On April 1, 1967, a document dated January 3, 1940 purporting to be the last with and testament of Adriana Maloto was delivered to the
Clerk of Art of the Art of First Instant of Iloilo. 4 It appears that Aldina Maloto Casiano Consent Maloto, Panfilo Maloto, and Felino
Maloto are named as heirs but Maloto Casiano and Constancio Maloto allegedly have shares in said with which are bigger, different
and more valuable than what they obtained in the extrajudicial partition. The said will also allegedly made dispositions to certain
devisees and/or legatees, among whom being the Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

On May 24, 1967, Aldina Maloto Casiano and Constancio Maloto filed in Special Proceeding No. 1736 a motion (1) for
reconsideration; (2) annulment of the proceedings; and (3) for the allowance of the last will and testament of Adriana Maloto. 5
 The Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also filed in Special Proceeding No. 1736 petitions for
the allowance of the will of Adriana Maloto. 6

Panfilo Maloto and Felino Maloto opposed the motion of Aldina Maloto Casiano and Constancio Maloto.

The Court of First Instance of iloilo, through Judge Emigdio V. Nietes, issued an order dated November 16, 1968 denying the
motion to reopen the proceedings on the ground that the said motion had been filed out of time. A motion for reconsideration of
said order was denied. Petitioners appealed from the order of denial. On motion of Panfilo Maloto and Felino Maloto, the lower
court dismissed the appeal on the ground that it was filed late. A motion for reconsideration of the order of dismissal was denied.
A supplemental order dated April 1, 1969 stating as additional ground that the appeal is improper was issued.

The petitioners filed a petition for certiorari and mandamus with the Supreme Court docketed as G.R. No. L-30479. This Court
dismissed the petition in a resolution dated May 14, 1969 which reads:

L-010479 (Constancio Maloto, et al, vs. Hon. Emigdio V. Nietes, etc., et al.) — THE COURT RESOLVED to
dismiss the petition for certiorari and mandamus, without passing on the issue of whether or not the
petitioners appeal from the order of November 16, 1968 of respondent Judge was made on time, it
appearing that the more appropriate remedy of petitioners in the premises stated in the petition is for
petitioners to initiate a separate proceeding for the probate of the alleged will in question. 7

Acting on the petitioners' motion for reconsideration and citation, fl Art issued a resolution dated July 15, 1969 which reads:

Acting on the motion for reconsideration and/or clarification filed by petitioner in G. R. No. L-30479,
Constancio Maloto, et al., vs. Hon. Emigdio V. Nietes, etc. et al., dated June 11, 1969, the Court resolved to
DENY the motion for reconsideration, with the clarification that the matter of whether or not the pertinent
findings of facts of respondent Judge in his herein subject order of November 16, 1968 constitute res
adjudicata may be raised in the proceedings for probate of the alleged will in question indicated in the
resolution of this Court of May 14, 1969, wherein such matter will be more appropriately determined. 8

Thereupon, the herein petitioners commenced Special Proceeding No. 2176 in the Court of First Instance of Iloilo for the probate of the
alleged last will and testament of Adriana Maloto. 9

Panfilo Maloto and Felino Maloto filed an opposition with a motion to dismiss on the following grounds:

I. THAT THE ALLEGED WILL SOUGHT TO BE PROBATED HAD BEEN DESTROYED AND REVOKED BY THE
TESTATRIX.

II. THAT THE INSTANT PETITION FOR PROBATE IS NOW BARRED BY PRIOR JUDGMENT OR ORDER (OR
RES JUDICATA).

III. THAT THE ESTATE OF THE LATE ADRIANA MALOTO HAD ALREADY PASSED OUT OF EXISTENCE AND
TITLE THERETO HAD ALREADY ARRESTED IN THE DISTRIBUTEES OF THEIR ASSIGNS.

IV. THAT PETITIONERS ALDINA MALOTO CASIANO AND CONSTANCIO MALOTO ARE NOW ESTOPPED
FROM SEEKING THE REMEDY TENDER THIS PROCEEDING, THEY HAVING CEASED TO BE INTERESTED
PARTIES. 10

In an order dated April 13, 1970, the probate court dismissed the petition for the probate of the with on the basis of the finding of said
court in Special Proceeding No. 1736 that the alleged win sought to be Probated had been destroyed and revoked by the testatrix. The
probate court sustained the oppositors' contention that the petition for probate is now barred by the order of November 16, 1968 in the
intestate estate proceeding, Special Proceeding No. 1736. 11

The herein petitioners allege that the probate court committed the following errors:

THE LOWER COURT ERRED IN HOLDING THAT THE .kl).NIITTEI)I,Y GENUINE LAST WILL AND
 TESTAMENT OF THE LATE ADRIANA MALOTO (THE SUBJECT OF PETITION FOR PROBATE — SPECIAL
PROCEEDING NO. 2176, CFI ILOILO) HAD PREVIOUSLY BEEN REVOKED BY HER (ADRIANA MALOTO).

II

THE LOWER COURT ERRED IN HOLDING THAT SAID PETITION (FOR PROBATE OF THE AFORESAID LAST
WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO) IS NOW BARRED BY PRIOR JUDGMENT. I. E.,
THAT THE MATTER CONCERNED IS NOW RES ADJUDICATA

III

THE LOWER COURT, THEREFORE, ERRED IN DISMISSING THE AFORESAID PETITION FOR PROBATE OF
THE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO AND IN NOT, INSTEAD, GIVING IT (
THE PETITION ABOVE-CITED DUE COURSE.12

The instant petition for review is meritorious.

The probate court had no jurisdiction to entertain the petition for the probate of the alleged with of Adriana Maloto in Special
Proceeding No. 1736. Indeed, the motion to reopen the was denied because the same was filed out of time. Moreover, it is not
proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. As a matter of fact, the
probate court in Special Proceeding No. 1736 stated in the order of November 16, 1968 that "Movants should have filed a
separate action for the probate of the Will." 13 And this court stated in its resolution of May 14, 1969 that "The more appropriate
remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the
alleged with in question."

In view of the foregoing, the order of November 16, 1968 in Special Proceeding No. 1736 is not a bar to the present petition for
the probate of the alleged will of Adriana Maloto.

WHEREFORE, the order dated April 13, 1970 dismissing the petition for the probate of the alleged will of Adriana Maloto is hereby
set aside and the lower court is directed to proceed with the hearing of the petition in Special Proceeding No. 2176 on the merits,
with costs against the respondents.

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz Palma, Martin and Gurerrero, JJ., concur.

The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26317             January 29, 1927

Estate of Miguel Mamuyac, deceased. 

FRANCISCO GAGO, petitioner-appellant, 
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, 
FELICIANA BAUZON, and CATALINA MAMUYAC,opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day
of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day
of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The
probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil
cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the
Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919
, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will
of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the
said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the
said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge
Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator Miguel
Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the will of the
testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919)
actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a
house and the land where the house was built, he had to cancel it (the will of 1919), executing thereby a new
testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by
the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents
have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same
Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney
for the opponents, testified that the original Exhibit A could not be found. For the foregoing consideration and for
the reason that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court
disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been
executed with all the formalities required by the law; that the same had been revoked and cancelled in 1920 before his death; that
the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower
court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of
a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due
search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found
after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority
of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the
testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of
the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are
in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent
clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of
revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the
testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that
a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the
duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or
destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by
the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so
ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2538             September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, 
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants. 

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the
deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this
Court for the reason that the value of the properties involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir
either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo,
and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on
August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as
special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court admitting the will
to probate was set aside and the case was reopened. After hearing, at which both parties presented their evidence, the court
rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in
accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the
probate of the will executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same
court. Again, the same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped
from seeking the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that
the will has been subsequently revoked. But before the second petition could be heard, the battle for liberation came and the
records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition
based on the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948,
the court issued an order admitting the will to probate already stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's
alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such
is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the
manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will
of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner
voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of
the will executed by the deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate
that petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of
her knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner
with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better
safeguard her right to inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and
terminated, are vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely
new and distinct and completely independent from the other is improper and unfair as they find no support whatsoever in any
evidence submitted by the parties in this case. They are merely based on the presumptions and conjectures not supported by any
proof. For this reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in
its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which
may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to
enable her to seek the probate of another will other than a mere conjecture drawn from the apparently unexpected testimony of
Canuto Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will and the
failure of petitioner later to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart
from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she informed the
court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find witnesses who
may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for
us to determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the
testimony of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is likewise within the province
and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the
developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by
the petitioner. There being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors,
the order of the court admitting said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the
case was reopened. The reopening was ordered because of the strong opposition of the oppositors who contended that he will
had not been executed as required by law. After the evidence of both parties had been presented, the oppositors filed an
extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of this
opposition, the court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor
invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation
with a lawyer, there was no need her to go through the order of filing the petition for the probate of the will. She could accomplish
her desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the will
executed in 1918. But for her conscience was clear and bade her to take the only proper step possible under the circumstances,
which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate.
But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault
that the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency
which petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited their
objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have
perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now
unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy
of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by
the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the
probate of the 1918 will simply because of her effort to obtain the allowance of the 1939 will has failed considering that in both
the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done
so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied
probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He
contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here
controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their
striking similarity with the facts of this case. We do not need to recite here what those facts are; it is enough to point out that
they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (
which we quote hereunder) should not apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was
not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of
wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil
., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the
ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter
to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but merely
represents the point of view of the minority and should, therefore, be abandoned, more so if we consider the fact that section 623
of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention. And these
authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and
does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in
controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that
is now the prevailing view in the United States. In the search we have made of American authorities on the subject, we found
ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by each
State in the subject of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities
is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is
a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American
jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the revocation
of a will by another writing provide that to be effective as a revocation, the writing must be executed with the
same formalities which are required to be observed in the execution of a will. Accordingly, where, under the
statutes, attestation is necessary to the making of a valid will, an unattested non testamentary writing is not
effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not
executed with the formalities requisite for the execution of a will, even though it is inscribed on the will itself,
although it may effect a revocation by cancellation or obliteration of the words of the will. A testator cannot
reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed in
the manner required for a will.
 SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid because of the
incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is
not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil,
even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by
a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the
simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies
with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of real estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the
statute. (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear
many authorities on the "application of rules where second will is invalid", among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed in accordance with
the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the
will is procured through undue influence, or the such, in other words, where the second will is really no will, it does
not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d
), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the
opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by
counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing
executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning
of said word, but as "other writing executed as provided in the case of wills", simply because it was denied probate. And even if it
be regarded as any other writing within the meaning of said clause, there is authority for holding that unless said writing is
admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator,
after executing the 1939 will, and with full knowledge of the recovatory clause contained said will, himself deliberately destroyed
the original of the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is only a
duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of
his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the
first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently
they remained in his possession until he executed his second will in 1939. And when the 1939 will was denied probate on
November 29, 1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A)
among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the
1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the
fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one
(21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a
copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions. Whatever may
be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second
will, which revoked the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the
honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not
say that the destruction of the earlier will was but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels
or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of
effect for same reason. The doctrine is n limited to the existence of some other document, however, and has been
applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of another will so as fairly
to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the
new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose
validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence
prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that
destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the
valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the
failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because
of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect.
The theory on which this principle is predicated is that the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca.
The first two witnesses died before the commencement of the present proceedings. So the only instrumental witness available
was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the due execution of the will. However,
petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public who
prepared and notarized the will upon the express desire and instruction of the testator, The testimony of these witnesses shows
that the will had been executed in the manner required by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt

Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-48840 December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant, 
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON,respondent-appellees.

Primacias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.
OZAETA, J.:

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara,
are litigating here over their inheritance from the latter. The action was commenced on November 12, 1937, by Rosario Guevara
to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased
— to wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of title No. 51691 of the
province of Pangasinan, issued in the name of Ernesto M. Guervara — and to order the latter to pay her P6,000 plus P2,000 a year
as damages for withholding such legitime from her. The defendant answered the complaint contending that whatever right or
rights the plaintiff might have had, had been barred by the operation of law.

It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law,
wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain
worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious
objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of
earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia Posadas,
various pieces of jewelry worth P1,020.

He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges,
Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the
donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd
hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of
complete settlement of her usufructurary right. 1awphil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact
Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and those of his family us to the time of his
death.

The remainder of said parcel of land his disposed of in the following manner:

(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento
veintinueve (129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus mejoras existentes en la
misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54)
centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) de este
parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas
cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de
mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71)
centiareas, que es la parte restante.

Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion
de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y
legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones
arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large
parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other
valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500, his
maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel
of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueño de la mitad norte
de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien
habia vendido con anterioridad."

On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance
of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the
same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The
registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as
applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant
and Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the
name of Ernesto M. Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to the court for
probate, nor has any administration proceeding ever been instituted for the settlement of his estate. Whether the various legatees
mentioned in the will have received their respective legacies or have even been given due notice of the execution of said will and
of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. Ever since the death of
Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to him in the
registration proceeding and to have disposed of various portions thereof for the purpose of paying the debts left by his father.

In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing
judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural
daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land
described in the will. But a little over four years after the testor's demise, she (assisted by her husband) commenced the present
action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this case that
she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victirino L.
Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which
reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent
herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the
defendant (petitioner herein) Ernesto M. Guevara.

We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural
law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of Civil Procedure, which
was in force up to the time this case was decided by the trial court, contains the following pertinent provisions:

Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the
 allowance by the court of a will of real and personal estate shall be conclusive as to its due execution.

Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within thirty days after he
knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named
in the will.

Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a will, shall within
thirty days after he knows of the death of the testor, or within thirty days after he knows that he is named executor
, if he obtained such knowledge after knowing of the death of the testor, present such will to the court which has
jurisdiction, unless the will has been otherwise returned to said court, and shall, within such period, signify to the
court his acceptance of the trust, or make known in writing his refusal to accept it.

Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding sections, unless he
gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars.

Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the death of the
testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the
court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there kept
in close confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940.

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to
each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not
contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of
sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the satisfaction
of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the
judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate
of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and section
624, C. C. P.)

It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory
and its allowance by the court is essential and indispensable to its efficacy. To assure and compel the probate of will, the law
punishes a person who neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not
presenting it, he may be committed to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective.
Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons:

The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings,
it would cause injustice, incovenience, delay, and much expense to the parties, and that therefore, it is preferable
to leave them in the very status which they themselves have chosen, and to decide their controversy once and for
all, since, in a similar case, the Supreme Court applied that same criterion (Leaño vs. Leaño, supra), which is now
sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the
procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the
Rules of Court, any suitable process or mode of procedure may be adopted which appears most consistent to the
spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and the heirs and
legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing
letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed
in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If
there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed
in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a
petition for letters of administration within two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a person who
died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the debts
have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion
and divide the estate among themselves, as they may see fit, without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a
summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be made under the
conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we
do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the failure of
its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides against. Section
1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter of
administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate among
themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to
issue letters of administration are two different things, altho both may be made in the same case. the allowance of a will
precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without
necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if
the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must
first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they so away with the presentation of the will to
the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the
will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a
person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent
legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the
collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others.

In the instant case there is no showing that the various legatees other than the present litigants had received their respective
legacies or that they had knowledge of the existence and of the provisions of the will. Their right under the will cannot be
disregarded, nor may those rights be obliterated on account of the failure or refusal of the custodian of the will to present it to the
court for probate.

Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of the
heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the
court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and
allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with
the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate
the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees
under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is
one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary
action for reinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure
adopted by the respondent.

The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial
partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one
Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November
10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs
went ahead and divided the properties among themselves and some of them subsequently sold and disposed of their shares to
third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was not in
accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September 1, 1911, the
trial court validated the partition, and one of the heirs, Cunegunda Leaño, appealed. In deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding that the heirs and
legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among themselves.

In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate
among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude that the
lower court had some evidence to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be
relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to
prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the
testamentary dispositions made by him by not presenting the will to the court for probate and by claiming her legitime as an
acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring
her to present the will to the court for probate.

In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial
court and impliedly approved by this Court in the Leaño case, by holding that an extrajudicial partition is not proper in testate
succession. In the Riosa case the Court, speaking thru Chief Justice Avanceña, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the Code of Civil
Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the property of
the deceased, without going into any court of justice, makes express reference to intestate succession, and
therefore excludes testate succession.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession, the heirs made
an extrajudicial partition of the estate and at the same time instituted proceeding for the probate of the will and
the administration of the estate. When the time came for making the partition, they submitted to the court the
 extrajudicial partition previously made by them, which the court approved. Held: That for the purposes of the
reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property
must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time
said partition was approved by the court. (Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the
exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for mode of proceeding may
be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the simple
reason that the procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out and
prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.

The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to comply
with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the will if the
attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be sanctioned. As to the
inconvenience, delay, and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated the
duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not
exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of inconvenience,
delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It
also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the proven
existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as custodian
thereof to comply with the duty imposed upon her by the law.

It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it
presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3
of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large
parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the
Torrens certificate of title in his favor.

II

This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of
the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar
as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July
12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of
Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein mentioned;
and (b) insofar as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda by
repurchasing it with his own money from Rafael T. Puzon.

A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of
the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has
not been proven that the charges imposed as a condition is [are] less than the value of the property; and (b) neither has it been
proven that the defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter of fact the
Court of Appeals found" "It appears that the defendant has been paying the debts left by his father. To accomplish this, he had to
alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless it is
proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that of his
corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive
upon the respondent, who did not appeal therefrom.

B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in
question, but the Court a quo, after considering the evidence, found it not proven; we hold that such conclusion is
well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was
inserted incidentally in the document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael
Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of
repurchase. The defendant, acting for his father, received the money and delivered it to Rafael Puzon to redeem
the land in question, and instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.

The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant,
because of the latter's promise that after paying all the debt of their father, he would deliver to her and to the
widow their corresponding shares. As their father then was still alive, there was no reason to require the delivery
of her share and that was why she did not insist on her opposition, trusting on the reliability and sincerity of her
brother's promise. The evidence shows that such promise was really made. The registration of land under the
Torrens system does not have the effect of altering the laws of succession, or the rights of partition between
coparceners, joint tenants, and other cotenants nor does it change or affect in any other way any other rights and
liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances,
she has the right to compel the defendant to deliver her corresponding share in the estate left by the deceased,
Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the
findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money
with which the petitioner repurchased the northern half of the land in question from Rafael Puzon was not his own but his father's
, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the
respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise that
after paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these facts, it
results that the interested parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone
subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares
after all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and
decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the
petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the
Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and
the cases therein cited.

Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the
will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the
event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate with
an equivalent portion from the southern half of said land that has not yet been sold. In other words, to the estate of Victorino L.
Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken from such
portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in consideration of
his assuming the obligation to pay all the debts of the deceased.

Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the
issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the judgment of said court
insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties
herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without
prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4
of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino
L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition
the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in
any of the three instances.

Yulo, C.J., and Hontiveros, 1 J., concur.

Separate Opinions

BOCOBO, J., concurring:

I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by section 1 of Rule 74. only "if the
decedent left no debts." In this case, according to the findings of the Court of Appeals, Ernesto M. Guevara "has been paying the
debts left by his father." It is true that said Ernesto M. Guevara, in consideration of the conveyance to him of the southern half of
the hacienda, assumed all the debts of the deceased, but this agreement is binding only upon the parties to the contract but not
upon the creditors who did not consent thereto. (Art. 1205, Civil Code.) There being debts when the father died, section 1 of Rule
74 is not applicable.

MORAN, J., concurring in part and dissenting in part:

I would be agreeable to the majority decision but for a statement therein made which in my view repeals by an erroneous
interpretation the provisions of Rule 74, section 1, of the Rules of Court, which reads as follows:

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. — If the decedent left no debts and the heirs
and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without
securing letters of administration, divide the estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
 action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two years after the death of the decedent.

The majority holds that under this provision, the heirs and legatees, even if all of them are of age, and there are no debts to be
paid, cannot make an extrajudicial settlement of the estate left by the decedent without first submitting in court for probate the
will left by the testator. This erroneous interpretation clearly overlooks not only the letter and the spirit but more specially the
whole background of the provision.

It is admitted that the provision has been taken from section 596 of Act No. 190 but with modification consisting in that it is
made to apply in testate succession. Said section 596 reads:

SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL PROCEEDINGS. — Whenever all the heirs of a
person who died intestate are of lawful age and legal capacity, and there are no debts due from the estate, or all
the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise,
apportion and divide the estate among themselves, as they may see fit, without proceedings in court.

It must be observed that the procedure contemplated in this legal provision is completely extrajudicial and the same procedure
intended in section 1 of Rule 74 above quoted which is captioned "Extrajudicial Settlement by Agreement . . .". Justice Laurel, who
was one of the members of this Court when the new Rules were promulgated, in commenting upon Rule 74, said:

RULE 74. SUMMARY SETTLEMENT OF ESTATES. — The corresponding provisions in the Code of Civil Procedures
are sections 596-598. There is substantial analogy between the provisions of the Code of Civil Procedure and
those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be extrajudicial settlement whether a person
died testate or intestate, while under section 596 of the Code of Civil Procedure extrajudicial settlement can be
had only when a person dies intestate. (2) Under Rule 74, section 1, extrajudicial settlement may take place 'if the
decedent left no debts,' while under section 596 of the Code of Civil Procedure it may take place 'when there are
no debts due from the estate, or all the debts have been paid.' (3) Under section 596 of the Code of Civil
Procedure, extrajudicial settlement may take place when 'the heirs and legatees are of lawful age and legal
capacity, while under section 1 of Rule 74 it may take place when the 'the heirs and legatees are all of legal age, or
the minors are represented by their judicial guardians' (4) Unlike the Code of Civil Procedure, section 596, section
1 of Rule 74 requires the extrajudicial agreement to be filed in the office of the register of deeds; provides that
should the heirs disagree, 'they may do so in an ordinary action of partition', and that 'if there is only one heir or
one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds', and that 'it shall be presumed that the decedent left no debts if no creditor files a petition for
letter of administration within two years after the death of the decedent.' [(Emphasis mine); Laurel, Procedural
Reform in the Philippines, pp. 137-138].

The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate without judicial proceeding.
In other words, even in cases of testate succession, the heirs and legatees, when they are all of age or are represented by their
judicial guardians, and there are no debts to be paid, are allowed by section 1 of Rule 74 of the Rules of Court to liquidate and
distribute among themselves the estate left by the decedent and need not go to court even for the probate of the will. Unless
legal terms mean nothing, this is clearly what it meant in said provision by the words "extrajudicial settlement" and by the clause "
. . . the parties may, without securing letters of administration, divide the estate among themselves as they see fit" . . . . When
judicial administration is made unnecessary by the provision, the inevitable implication is that the probate of the will is also
unnecessary, the probate having no other object than administration for purposes of distribution according to the provisions of
the will. That is why section 4 of rule 78 provides:

ESTATE, HOW ADMINISTERED. — When a will is thus allowed, the court shall grant letters testamentary, or letters
of administration with the will annexed, such letters testamentary or of administration shall extend to all the
estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.

If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I repeat, the probate of the will being
purposeless, becomes unnecessary. If the parties have already divided the estate in accordance with the will, the probate of the
will is a useless ceremony. If they have divided the estate in a different manner, the probate of the will is worse than useless; it is
ridiculous. The following words of this Court in a previous case may well be here reiterated:

These sections provide for the voluntary division of the whole property of the decedent without proceedings in
court. The provisions which they contain are extremely important. The wisdom which underlies them is apparent.
It is the undisputed policy of every people which maintains the principle of private ownership of property that he
who owns a thing shall not be deprived of its possession or use except for the most urgent and imperative
reasons and then only so long as is necessary to make the rights which underlie those reasons effective. It is a
principle of universal acceptance which declares that one has the instant right to occupy and use that which he
owns, and it is only in the presence of reasons of the strongest and most urgent nature that the principle is
prevented from accomplishing the purpose which underlies it. The force which gave birth to this stern and
imperious principle is the same force which destroyed the feudal despotism and created the democracy of
private owners.

These provisions should, therefore, be given the most liberal construction so that the intent of the framers may be
fully carried out. They should not be straitened or narrowed but should rather be given that wideness and fullness
of application without which they cannot produce their most beneficial effects.

. . . The purpose which underlies them, as we have already intimated, is to put into one's hands the property which
belongs to him not only at the earliest possible moment but also with the least possible expense. By permitting
the partition and division without proceedings in court no time is lost and substantially all expense and waste are
saved. This is as it should be. The State fails wretchedly in its duly to its citizens if the machinery furnished by it
for the division and distribution of the property of a decedent is so cumbersome, unwieldy and expensive that a
considerable portion of the estate is absorbed in the process of such division. . . . (McMicking vs. Sy Conbieng, 21
Phil., 211; 219-220).

Indeed, there can be no valid reason why the probate of a will may not be dispensed with by agreement of all the parties
interested and the estate left by the decedent settled extrajudicially among all the heirs and legatees, as is now provided in
section 1 of Rule 74. It is well recognized that the allowance of a will gives conclusiveness merely to its provisions which are
governed by the substantive law regarding descent and distribution. If so, why cannot all the parties interested agree, without
going to court, that the will of the decedent is in form valid (this being the only point to be litigated in a probate proceeding), and
that they will divide the inheritance in the manner acceptable to them? The procedure would not be against public policy or the
law placing in the hands of the courts the probate of wills, because what the courts are enjoined to do for the benefit of the
parties, the latter have already done. As long as the extrajudicial partition of the estate does not affect the rights of third parties
and is not rendered invalid by any provision of the substantive law, no possible objection can be raised thereto. On practical
considerations, it would be useless to force the parties, at their expense, to go thru the formality of probating a will and dividing
the estate in accordance therewith, because as soon as the routine is over, they are of course free to make such transfers to one
another as will be necessary to effect a partition which they would have made if they were allowed to settle the estate
extrajudicially. It is true that there are provisions in the Rules of Court compelling the delivery of a will to the competent court and
punishing omissions to do so, but said provisions are calculated to protect the interests of the persons entitled to share in the
inheritance. The latter may waive such benefit. This waiver cannot be said to be withdrawal or diminution of the jurisdiction of the
court, since it only implies a desire of the parties not to litigate. The fear that "absent legatees and devisees, or such of them as
may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree
to the partition of the estate among themselves to the exclusion of others", is wisely provided against in the requirement of the
Rule that all the parties interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The
participation of all the interested parties excludes the probability of fraud or collusion and, even in that eventuality, the aggrieved
beneficiaries are not without adequate remedy for the voidance of the partition under the Civil Code.

And this is in accordance with the weight of authority in this and other jurisdictions. In Leaño vs. Leaño (25 Phil., 180), all the heirs
and legatees have made an extrajudicial partition of the estate left by the decedent and then filed the will in court which was
probated. Nine years of costly probate proceedings have followed after which the extrajudicial partition was made known to
court. such extrajudicial partition was objected to by one party upon the ground that it was not in conformity with the provisions
of the will. But the trial Court held:

Naturally the partition made by the heirs voluntarily and spontaneously must produce and has produced a legal
status, which cannot be annulled merely for the caprice of one person. and it cannot be said that, because the
partition was not made in accordance with the will, if such be the case, the latter has to be annulled, for by
voluntarily and spontaneously concurring therein they implicitly renounced the effects of said will, of which they
were aware. (See p. 183).

On appeal, this Court affirmed the ruling with the following pronouncement:

In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate
among the heirs and legatees and in the absence of positive proof to the contrary, we must conclude that the
lower court had some evidence to support his conclusion. If the heirs and legatees had voluntarily divided the
estate among themselves, then their division is conclusive, unless and until it is shown that there were debts
existing against the estate which had not been paid. No claim is made whatever by third parties nor objections of
any character are made by others than the heirs against said partition. We see no reason why their heirs and
legatees should not be bound by their voluntary acts. (Page 183–184).

This case furnishes precisely a valuable experience as to the practical wisdom underlying the procedure established in section 1
of Rule 74. After the will was probated and after nine years of costly administration proceedings, nothing — absolutely nothing —
was accomplished by the court except to make the belated pronouncement that the extrajudicial partition made by the parties
prior to the institution of the proceedings was proper and binding upon them. Thus, the whole proceedings for nine years have
proved no more than a futile chronicle of wasted time and money for the parties and the court. This disgraceful experience could
not and did not pass unnoticed to the members of this Court who drafted the new Rules of Court. The solemn admonition made
by this Court in a previous case (McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in its duly to its
citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome,
unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division", rang with re-
echoing insistence and was heeded to when the new Rules of Court was drafted and promulgated. The fundamental policy
pervading the whole system of procedure adopted in said Rules is speed, economy an justice. Thus, features of procedure were
done away with when, without them, the same purpose may be achieved. The result is brevity and simplicity of procedure with
such guarantees as the necessary to assure due process. And to remedy such evil as is disclosed in the Leaño case, a
completely extrajudicial settlement is allowed even in testate succession with the probate of the will dispensed with, when the
heirs and legatees who are all of age or represented by their judicial guardians, so agree, and there are not debts to be paid. Thus,
the scope of section 596 of Act No. 190 was amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil., 737). The
procedure is in consonance with the almost unanimous weight of authority in other jurisdictions:

The complainant, to which a demurrer was sustained, shows that all the persons interested in a decedent's estate
, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the will, and the
husbands of femes covert, (all being adults), by agreement divided among themselves all the property of the
estate according to the direction of the will, paid off all debts against the estate, and delivered the note described
to the plaintiff, as a part of her share; and all this was done without probate of the will, or administration of the
estate. The effect of such a division was to invest the plaintiff with an equitable title to the note. In the absence of
the will, the decisions of this court, heretofore made, would meet every argument in favor of an opposite
conclusion. (Anderson vs. Anderson, 37 Ala., 683; Marshall vs. Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala.,
494; Miller vs. Eatman, 11 feature of this case, take it out of the principle of those decisions? We can perceive no
sufficient reason why it should. All the parties interested, or to be affected, may as well by agreement divide
property, where there is a will, without employing the agency of courts, as in case of intestacy. Parties, competent
to act, ought to do that, without the agency of courts, which the courts would ultimately accomplish. To deny
them the privilege of so doing, would manifest a judicial abhorrence of harmony. By the probate of the will, the
claims of heirs and distributees, and of the widow, would have been subordinated to the directions of the will. this
has been accomplished by the agreement. There being no debts, the executrix would have had no other duty to
perform, than to divide the property according to the will. This, too, has been done by agreement of competent
parties. All the ends and objects of judicial proceedings have been accomplished, by agreement of the parties;
and that agreement must be effective. (Carter vs. Owens, 41 Ala., 215; 216-217).

The absence of sound objection on this ground to a contract having for its sole purpose the disposition of
property in a manner different from that proposed by a a testator, even where the contract contemplates the
rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free
from fraud, and is made by all the parties in interest, may be freely conceded. As has often been substantially said
, the public generally has not interest in the matter of the probate of a will; and only those interested in the estate
under the will or otherwise are affected by such a contract. If they all agree upon some course to be followed, and
their contract is otherwise free from contemplated fraud or violation of any law, no one else has any such interest
as warrants complaint. Such was the character of contract involved in Spangenberg vs. Spangenberg (App.), 126
Pac., 379, especially relied on by plaintiff here, where the contract purported to affect only such property of the
deceased as should in fact be received by the parties thereto. In Estate of Garcelon, 104 Cal, 570; 38 Pac., 414; 32
L. R. A.,. 595; 43 Am. St., Rep., 134, another case much relied on by plaintiff, a contract by an heir to refrain from
contesting a will was involved. It was said that the contract was one that concerned the parties alone, and one
that did not appear to be against public policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal., 596).

The question of public policy is introduced. The disposition of one's property after death is controlled by statute.
One of the next of kin has no vested interest in such property. In cases of intestacy, a next of kin has such interest
as the statute declares. In case there is a will, he has an interest which gives him a standing and right to contest
the will. This right is his alone; in it the public has no interest; he may refrain from exercising it, or he may dispose
of it as he wishes, by release or assignment or settlement, and the law of public policy is not offended. (In re cook'
s Will, 217 N. Y. S., 176, 180-181).

Agreement. — "It has been definitely decided by the courts of this state, and of many other states, that the
beneficiaries under a will have a right to agree among themselves upon any distribution they see proper of the
property bequeathed to them. 
. . . That holding is based upon the proposition that the property is theirs. No one else is interested in its
disposition, and they may, with propriety, make any distribution of it that suits them, so long as they do not invade
the rights of other parties or infringe some rule of public policy'. (Fore vs. McFadden, 276 N. W., 327; 329).

The first assignment of error presented by appellants complains of the action of the court in sustaining
exceptions to averments asking the enforcement of the agreement that the will should not be probated, and that
the estate should be divided among the parties as they would be entitled as heirs at law of the deceased, the
proponent of the will surrendering thereby his rights as principal legatee. This assignment must be sustained. It
cannot be seen that the agreement is contrary to public policy. Parties may make any contract with reference to
their property rights that is not illegal, may adjust by compromise their differences and disputes concerning the
same and, as they bind themselves, so shall they be bound. It is difficult to understand why this cannot be
effected by an agreement not to probate a will, or how it interferes with public policy. The power to litigate and to
establish a right by appeal to the courts is as much the subject of contract as any other right in property. Such
adjustments by contract are favored by the law and the courts, and are not deemed to be an unwarranted
interference with the jurisdiction of the courts, or against public policy. On the contrary, public policy favors them.

Appellants have cited a case in point, — the case of Phillips v. Phillips, 8 Watts, 197, in which it is held competent
for devisees and legatees to bind themselves by a written or parol agreement to destroy a will before probate, and
that a party to the agreement would be estopped from claiming any interest under the will. The court says: "It
cannot admit of doubt that before probate the parties in interest under a will would have the right to set aside a
will, and such an act would be favored, when the object was to avert a family controversy". The agreement that
the will should not be probated, and that the parties would take the property as heirs at law of the deceased,
destroyed the legal effect of the will; and it could not thereafter have legal existence in conferring rights upon the
legatees. (Stringfellow vs.Early, 40 SW., 871, 873-874; 15 Tex. Civ. App., 597).

The contention that the complaint does not state a cause of action, because the contract sued on is against
public policy, and therefore void, is made here for the first time. It is to the interest of the public generally that the
right to make contract should not be unduly restricted, and no agreement will be pronounced void, as being
against public policy, unless it clearly contravenes that which has been declared by statutory enactment or by
judicial decisions to be public policy, or unless the agreement manifestly tends in some way to injure the public.
Whether or not a contract in any given case is contrary to public policy is a question of law, to be determined from
the circumstances of each particular case. Smith vs. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; 
Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L.R.A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290
; Print Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465.

The contract in controversy is in effect but an agreement whereby the parties thereto, "because of their love and
affection for one another" and "being desirous of avoiding litigation over the estate" of their father "in case of his
death," agreed to ignore his will in the event that he made one, and then share his estate equally as if he had died
 intestate. In other words, the contract was but an agreement of heirs apparent not to contest the will of an
ancestor. There is nothing to be fond in our code or statutory law prohibiting the making and enforcement of such
a contract, and it has been held in this state that a contract, made after the death of the deceased, not to contest
his will, is purely personal to the parties making it, that it is not against public policy, and that, when fairly made, it
will be enforced, (Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).

Probate Dispensed With. — Probate of a will may be dispensed with by an agreement between the persons
interested; or it may be dispensed with where the testator, before his death, conveyed to the devisees all the
property which he had devised to them, or where the will makes no other disposition of the testator's property
than the law would have done had he died interstate, and the rights sought to be established are admitted by all
concerned. But where the language of the will expressly invokes the jurisdiction of the probate court the fact that
no administration is necessary does not affect the power of the court to probate the will. (68 C. J., pp. 877-878).

Agreement between Persons Interested: a. Requisites and Validity. (1) In General. — It has been held that, since the nature of a
probate proceeding is one in rem, the parties cannot submit a controversy arising therein to arbitration. The law, however, favors
the settlement, in good faith, of will contests, by a so-called "family settlement", although it changes the mode of disposition of the
estate; and, therefore, subject to the limitation that a contestant cannot compromise anything beyond his own personal interest in
the contest, persons, such as devisees, legatee, heirs, or next of kin, having interest in the will or estate, sufficient to entitle them
to opposed probate or contest the will, may enter into an agreement which, in the absence of fraud or misrepresentation, is valid
and binding on all the parties thereto, whereby they waive probate of the will and bind themselves to abide by its provisions, or
whereby they agree that the will is not to be probated or is to be superseded or destroyed; or whereby any controversy relative to
the probate or contest of the will is compromised or settled, and a contest is avoided, whether or not there were, in fact, valid
grounds for the contest. Such an agreement, in order to be valid, must not exclude anyone entitled under the will, must be entered
into by all the persons affected thereby, and all the parties thereto must be competent to make the agreement, and either they or
their representative must fully execute it, and, under some statutes, it must be properly approved by the court." ([Emphasis
supplied] 68 C. J., pp. 909-910).

As to Probate. — The operation and effect of the agreement may not to supersede the provisions of the will, but to
carry out its provisions without a probate, and under such agreement the parties are precluded from denying the
probate, or insisting on the invalidating of the will for want of probate. So, also, a person who agrees not to
contest the will is precluded from opposing probate; or the probate of a will may be dispensed with, and the
persons interested in the estate under the will given at least an equitable interest in the property, where they, being
under no disability, divide the estate, pursuant to an agreement among themselves. Where the effect of the
agreement of all interested parties is to repudiate or renounce the will, it will not be probated, especially where the
agreement expressly so provides; but it has been held that, where the executor, defending a torn will, agrees, for a
consideration, not to probate it, the court should not refuse probate without notifying other beneficiaries and
requiring testimony as to the tearing of the will by the testator. Probate, however, is not prevented by an
agreement executed by a part only of the beneficiaries, and the parties to such agreement are not prevented
thereby from taking under the will which is probated by another interested person. ([Emphasis supplied] 68 C. J.,
pp. 914-915).

Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the purpose of
saving a family controversy and for the purpose of dividing the estate, enter into a compromise and settlement
agreement, under the terms of which the entire estate is to be, and has in part been, divided, and agree that the
instrument shall not be offered for probate, it is sufficient to prevent a probate. (Brown vs. Burk, 26 NW [2d ed.],
 415.

Validity of Agreements of Dispense with Probate or to Modify or Set Aside Will. — Though in some jurisdictions an
agreement to dispense with the probate of a will has been declared to be against public policy and void, in a
majority of the decisions on the point it has been held that all the persons interested in decedent's estate may by
agreement divide the estate among themselves, without probating such decedent's will or administering the
estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different
from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for
probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the
parties in interest, would seem to be freely concede. Thus it has been held that all the parties in interest may
agree to eliminate from a will a clause providing for survivorship among them. But an agreement to resist the
probate of a will and procure it to be set aside so as to curt off the interest of one who is not a party to such
agreement is against public policy. Nor does the right of all the parties in interest to set aside or disregard a will
extend to the case of an active trust, for a definite term, created by a testator as he deems proper for the
protection of his beneficiaries. A contract between the next of kin of a decedent, that they will each have a certain
portion of the estate, does not amount to an agreement to divide the estate without probating the will. (28 R.C.L.,
pp. 357-358).

The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-358) is from the Supreme
Court of only one State — that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States held the
contrary doctrine that is now embodied in section 1 of Rule 74. Commenting upon the Wisconsin rule, the Editor of the L.R.A.
says the following:

No case has been found other than Re Dardis wherein any court passed upon the validity of a stipulation to
secure the denial to probate of a will theretofore offered for probate, on the ground that the testator was mentally
incompetent to make a will at the time of its execution. The decision of the court is based upon the doctrine
therein enunciated, that proceedings to probate a will are proceedings in rem, which public interest demands
should be pursued to a final adjudication, regardless of the wishes of the interested parties. In this connection
and with reference to this broader question, it is of interest to note that courts of other jurisdictions, although
generally recognizing that proceedings to probate a will are proceedings in rem, hold that the proceeding is inter
partes to the extent that all the parties in interest may control the probate proceedings, even to the extent of doing
away with the probate. (23 L.R.A. [N.S.], p.783).

For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has solemnly given a form of a rule —
section 1, Rule 74 — to what was merely the consensus of judicial opinion. We cannot now repudiate the procedure outlined in
said provision unless we amend it by another rule.

The majority, however, expresses fear that abuses may easily be committed under the Rules. Such fears have always been the
bugbear set up against all task of procedural reforms. To be sure, there has never been any provision of law that is not liable to
abuses. If by mere possibility of abuse we are to disregard clear provisions of a procedural law, the result would not only the
abrogation of all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil under a specific
situation therein contemplated, it must be deemed good even if other situations may be simulated or falsified and placed within
its purview. And when that law is duly enacted, it is no concern of the courts to pass upon its wisdom, their duty being to apply its
provisions in a manner which shall not defeat the intention underlying it. Laws are promulgated to be obeyed and when they are
abused there are the courts to check up the abuse. Courts must deal with the specific circumstances of each case and construe
the provisions in such a manner as to make it impregnable if possible to further abuses. This is constructive, not destructive,
jurisprudence. This explains why laws are more often worded so broadly as to lay merely general principles — a skeleton — the
flesh to be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial controversies should
be careful not to advance opinions which are not necessary to a proper disposition of the case. Judicial experience has shown
that such advanced opinions may not infrequently place the court in an embarrassing position when a proper case with the
proper factual environment is properly presented with all its angles before the court. Jurisprudence must be carefully progressive
and not impetuously aggressive. for instance, the majority, impressed by the awful circumstances of the present case, has found
it dangerous to hold that the probate of the will may be dispensed with. While this conclusion is constructive under the peculiar
facts of the case, to generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs and
legatees who are all of age have agreed to dispense with the probate of a will and have actually made an extrajudicial partition,
and if it appears further that each of the recipients is in peaceful enjoyment of his share in the estate, I am sure that the majority,
with the practical wisdom they have shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees
and compel them to go into court and litigate.

The majority, without the necessity of holding whether the probate of a will may or may not be dispensed with under Rule 74,
section 1, could have decided this case by stating that said provision is not applicable, its requirements not being present. And I
would be wholly agreeable to this conclusion because the beneficiaries under the will do not appear to have made an
extrajudicial settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the natural daughter,
Rosario Guevara, is one for partition against all such beneficiaries founded either on an extrajudicial settlement or on the
provisions of the will as accepted by all parties to be valid and binding. Upon the contrary, Rosario Guevara appears to be wishing
to take advantage of the will in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently,
Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its contents. The situation not
being the one contemplated by section 1 of Rule 74, plaintiff may not invoke its provisions.

Footnotes

1 Justice Hontiveros of the Court of Appeals took part in this case by special designation.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-20234      December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners, 

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing
that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will
and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage
together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured
since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in
sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939,
and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance
of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by
Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el
testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite
Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de
la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se presentare
contra los bienes del finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria
Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the
probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special
Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R.
 Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March
30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to
the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on
appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two
or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will
has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one
such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction,
there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as
was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the
provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (
when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even
then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a
third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of
occasional errors judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set
litium(Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to
probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is
valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989
could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the
wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will
could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined
and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court
of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said
Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil
Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary
may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO, respondents.

GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate
Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in
favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on
page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and
Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the
Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public
Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his
estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been
living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia
J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely,
his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein
petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our
son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and
properly entitled to inherit from me; that while I have been estranged from my above-named wife for so
many years, I cannot deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I
declare and avow to be entitled to my love and affection, for all the things which she has done for me,
now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did
comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my aforementioned previous
marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in
the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the
execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution
of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she
is wanting in integrity and thus, letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to
cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle
exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will.
The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in
favor of the appellant which is declared null and void. The properties so devised are instead passed on in
intestacy to the appellant in equal shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word
"appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties
so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion
was granted by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution
dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of
the testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the
probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively
as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by
the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of
the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present
contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix
Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the
testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the
respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the
intrinsic validity of the Will and declared the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the
extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

... It is elementary that a probate decree finally and definitively settles all questions concerning capacity
of the testator and the proper execution and witnessing of his last Will and testament, irrespective of
whether its provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba,21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic
validity thereof. The testators testamentary capacity and the compliance with the formal requisites or
 solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry
into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is
premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing
; the validity of the testamentary provisions is another. The first decides the execution of the document
and the testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v.
Ramagosa,21 SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will was executed with the
formalities required by law and that the testator was in a condition to make a will, is the only purpose of
the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such
proceedings determines and can determine nothing more. In them the court has no power to pass upon
the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void
and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what
the situation constrains it to do and pass upon certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the
validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

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 v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of
Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will
. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the
probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:
 This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the
petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the record, in the
event of probate or if the court rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us to a belief that we
might as well meet head-on the issue of the validity of the provisions of the will in question. (Section 2,
Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for
that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the
donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the
same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary
provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974,
Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He
also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had
been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and
affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of
the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is
also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the
Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in
good faith for 22 years in the belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil
status of the testator, which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner
by the deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as
already married, was an important and specific issue brought by the parties before the trial court, and
passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present
evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1,
1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the
point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious
relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the
inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or
concubinage', it was a finding that petitioner was not the innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the
following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of
course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way
at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so much
so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of
August 18, 1975, pp. 29-30)
 SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That
would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3).
Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in
between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did
not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was already about 50 years old at the
time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration
that she new that the man she had openly lived for 22 years as man and wife was a married man with
already two children.

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she
would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible
that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived
for many years) and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common life and the ordinary instincts and promptings
of human nature that a woman would not bother at all to ask the man she was going to marry whether or
not he was already married to another, knowing that her groom had children. It would be a story that
would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married
man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led
petitioner to break off with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in
adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may
receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court,
is AFFIRMED. No costs.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila

THIRD Division

G.R. No. 165748               September 14, 2011

HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF
POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and
BERNADETTE T. URETA, Petitioners, 
vs.
HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F.
URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO; HEIRS
OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS,
CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA; VICENTE M. URETA; HEIRS OF
FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-
GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA,
and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT
URETA,Respondents.

x - - - - - - - - - - - - - - - -x

G.R. No. 165930              

HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F.
URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO; HEIRS
OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS,
CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA; VICENTE M. URETA; HEIRS OF
FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-
GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA,
and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT
URETA,Petitioners, 
vs.
HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF
POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and
BERNADETTE T. URETA, Respondents.

DECISION

MENDOZA, J.:

These consolidated petitions for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure assail the April
20, 2004 Decision1 of the Court of Appeals (CA), and its October 14, 2004 Resolution2 in C.A.-G.R. CV No. 71399, which affirmed
with modification the April 26, 2001 Decision3 of the Regional Trial Court, Branch 9, Kalibo, Aklan (RTC) in Civil Case No. 5026.

The Facts

In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco,
Inocensio, Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of Policronio (Heirs of Policronio), are
opposed to the rest of Alfonso’s children and their descendants (Heirs of Alfonso).

Alfonso was financially well-off during his lifetime. He owned several fishpens, a fishpond, a sari-sari store, a passenger jeep, and
was engaged in the buying and selling of copra. Policronio, the eldest, was the only child of Alfonso who failed to finish schooling
and instead worked on his father’s lands.

Sometime in October 1969, Alfonso and four of his children, namely, Policronio, Liberato, Prudencia, and Francisco, met at the
house of Liberato. Francisco, who was then a municipal judge, suggested that in order to reduce the inheritance taxes, their
father should make it appear that he had sold some of his lands to his children. Accordingly, Alfonso executed four (4) Deeds of
Sale covering several parcels of land in favor of Policronio,4 Liberato,5 Prudencia,6 and his common-law wife, Valeriana Dela Cruz.
7 The Deed of Sale executed on October 25, 1969, in favor of Policronio, covered six parcels of land, which are the properties in

dispute in this case.

Since the sales were only made for taxation purposes and no monetary consideration was given, Alfonso continued to own,
possess and enjoy the lands and their produce.

When Alfonso died on October 11, 1972, Liberato acted as the administrator of his father’s estate. He was later succeeded by his
sister Prudencia, and then by her daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest of the parcels transferred
to Policronio were tenanted by the Fernandez Family. These tenants never turned over the produce of the lands to Policronio or
any of his heirs, but to Alfonso and, later, to the administrators of his estate.

Policronio died on November 22, 1974. Except for the said portion of parcel 5, neither Policronio nor his heirs ever took
possession of the subject lands.

On April 19, 1989, Alfonso’s heirs executed a Deed of Extra-Judicial Partition,8 which included all the lands that were covered by
the four (4) deeds of sale that were previously executed by Alfonso for taxation purposes. Conrado, Policronio’s eldest son,
representing the Heirs of Policronio, signed the Deed of Extra-Judicial Partition in behalf of his co-heirs.

After their father’s death, the Heirs of Policronio found tax declarations in his name covering the six parcels of land. On June 15,
1995, they obtained a copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor of Policronio.

Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned about the Deed of Extra-Judicial Partition involving
Alfonso’s estate when it was published in the July 19, 1995 issue of the Aklan Reporter.

Believing that the six parcels of land belonged to their late father, and as such, excluded from the Deed of Extra-Judicial Partition,
the Heirs of Policronio sought to amicably settle the matter with the Heirs of Alfonso. Earnest efforts proving futile, the Heirs of
Policronio filed a Complaint for Declaration of Ownership, Recovery of Possession, Annulment of Documents, Partition, and
Damages9 against the Heirs of Alfonso before the RTC on November 17, 1995 where the following issues were submitted: (1)
whether or not the Deed of Sale was valid; (2) whether or not the Deed of Extra-Judicial Partition was valid; and (3) who between
the parties was entitled to damages.

The Ruling of the RTC

On April 26, 2001, the RTC dismissed the Complaint of the Heirs of Policronio and ruled in favor of the Heirs of Alfonso in a
decision, the dispositive portion of which reads:

WHEREFORE, the Court finds that the preponderance of evidence tilts in favor of the defendants, hence the instant case is hereby
DISMISSED.

The counterclaims are likewise DISMISSED.

With costs against plaintiffs.

SO ORDERED.

The RTC found that the Heirs of Alfonso clearly established that the Deed of Sale was null and void. It held that the Heirs of
Policronio failed to rebut the evidence of the Heirs of Alfonso, which proved that the Deed of Sale in the possession of the former
was one of the four (4) Deeds of Sale executed by Alfonso in favor of his 3 children and second wife for taxation purposes; that
although tax declarations were issued in the name of Policronio, he or his heirs never took possession of the subject lands
except a portion of parcel 5; and that all the produce were turned over by the tenants to Alfonso and the administrators of his
estate and never to Policronio or his heirs.

The RTC further found that there was no money involved in the sale. Even granting that there was, as claimed by the Heirs of
Policronio, ₱2,000.00 for six parcels of land, the amount was grossly inadequate. It was also noted that the aggregate area of the
subject lands was more than double the average share adjudicated to each of the other children in the Deed of Extra-Judicial
Partition; that the siblings of Policronio were the ones who shared in the produce of the land; and that the Heirs of Policronio only
paid real estate taxes in 1996 and 1997. The RTC opined that Policronio must have been aware that the transfer was merely for
taxation purposes because he did not subsequently take possession of the properties even after the death of his father.

The Deed of Extra-Judicial Partition, on the other hand, was declared valid by the RTC as all the heirs of Alfonso were represented
and received equal shares and all the requirements of a valid extra-judicial partition were met. The RTC considered Conrado’s
claim that he did not understand the full significance of his signature when he signed in behalf of his co-heirs, as a gratutitous
assertion. The RTC was of the view that when he admitted to have signed all the pages and personally appeared before the
notary public, he was presumed to have understood their contents.

Lastly, neither party was entitled to damages. The Heirs of Alfonso failed to present testimony to serve as factual basis for moral
damages, no document was presented to prove actual damages, and the Heirs of Policronio were found to have filed the case in
good faith.

The Ruling of the CA

Aggrieved, the Heirs of Policronio appealed before the CA, which rendered a decision on April 20, 2004, the dispositive portion of
which reads as follows:

WHEREFORE, the appeal is PARTIALLY GRANTED. The appealed Decision, dated 26 April 2001, rendered by Hon. Judge Dean R.
Telan of the Regional Trial Court of Kalibo, Aklan, Branch 9, is hereby AFFIRMED with MODIFICATION:

1.) The Deed of Sale in favor of Policronio Ureta, Sr., dated 25 October 1969, covering six (6) parcels of land is
hereby declared VOID for being ABSOLUTELY SIMULATED;

2.) The Deed of Extra-Judicial Partition, dated 19 April 1989, is ANNULLED;

3.) The claim for actual and exemplary damages are DISMISSED for lack of factual and legal basis.

The case is hereby REMANDED to the court of origin for the proper partition of ALFONSO URETA’S Estate in accordance with Rule
69 of the 1997 Rules of Civil Procedure. No costs at this instance.

SO ORDERED.

The CA affirmed the finding of the RTC that the Deed of Sale was void. It found the Deed of Sale to be absolutely simulated as the
parties did not intend to be legally bound by it. As such, it produced no legal effects and did not alter the juridical situation of the
parties. The CA also noted that Alfonso continued to exercise all the rights of an owner even after the execution of the Deed of
Sale, as it was undisputed that he remained in possession of the subject parcels of land and enjoyed their produce until his death.

Policronio, on the other hand, never exercised any rights pertaining to an owner over the subject lands from the time they were
sold to him up until his death. He never took or attempted to take possession of the land even after his father’s death, never
demanded delivery of the produce from the tenants, and never paid realty taxes on the properties. It was also noted that
Policronio never disclosed the existence of the Deed of Sale to his children, as they were, in fact, surprised to discover its
existence. The CA, thus, concluded that Policronio must have been aware that the transfer was only made for taxation purposes.

The testimony of Amparo Castillo, as to the circumstances surrounding the actual arrangement and agreement between the
parties prior to the execution of the four (4) Deeds of Sale, was found by the CA to be unrebutted. The RTC’s assessment of the
credibility of her testimony was accorded respect, and the intention of the parties was given the primary consideration in
determining the true nature of the contract.

Contrary to the finding of the RTC though, the CA annulled the Deed of Extra-Judicial Partition due to the incapacity of one of the
parties to give his consent to the contract. It held that before Conrado could validly bind his co-heirs to the Deed of Extra-Judicial
Partition, it was necessary that he be clothed with the proper authority. The CA ruled that a special power of attorney was
required under Article 1878 (5) and (15) of the Civil Code. Without a special power of attorney, it was held that Conrado lacked
the legal capactiy to give the consent of his co-heirs, thus, rendering the Deed of Extra-Judicial Partition voidable under Article
1390 (1) of the Civil Code.

As a consequence, the CA ordered the remand of the case to the RTC for the proper partition of the estate, with the option that
the parties may still voluntarily effect the partition by executing another agreement or by adopting the assailed Deed of Partition
with the RTC’s approval in either case. Otherwise, the RTC may proceed with the compulsory partition of the estate in accordance
with the Rules.

With regard to the claim for damages, the CA agreed with the RTC and dismissed the claim for actual and compensatory
damages for lack of factual and legal basis.

Both parties filed their respective Motions for Reconsideration, which were denied by the CA for lack of merit in a Resolution
dated October 14, 2004.

In their Motion for Reconsideration, the Heirs of Policronio argued that the RTC violated the best evidence rule in giving credence
to the testimony of Amparo Castillo with regard to the simulation of the Deed of Sale, and that prescription had set in precluding
any question on the validity of the contract.

The CA held that the oral testimony was admissible under Rule 130, Section 9 (b) and (c), which provides that evidence aliunde
 may be allowed to explain the terms of the written agreement if the same failed to express the true intent and agreement of the
parties thereto, or when the validity of the written agreement was put in issue. Furthermore, the CA found that the Heirs of
Policronio waived their right to object to evidence aliunde having failed to do so during trial and for raising such only for the first
time on appeal. With regard to prescription, the CA ruled that the action or defense for the declaration of the inexistence of a
contract did not prescribe under Article 1410 of the Civil Code.

On the other hand, the Heirs of Alfonso argued that the Deed of Extra-Judicial Partition should not have been annulled, and
instead the preterited heirs should be given their share. The CA reiterated that Conrado’s lack of capacity to give his co-heirs’
consent to the extra-judicial settlement rendered the same voidable.

Hence, the present Petitions for Review on Certiorari.

 The Issues

The issues presented for resolution by the Heirs of Policronio in G.R. No. 165748 are as follows:

I.

Whether the Court of Appeals is correct in ruling that the Deed of Absolute Sale of 25 October 1969 is void for
being absolutely fictitious and in relation therewith, may parol evidence be entertained to thwart its binding
effect after the parties have both died?

Assuming that indeed the said document is simulated, whether or not the parties thereto including their
successors in interest are estopped to question its validity, they being bound by Articles 1412 and 1421 of the
Civil Code?

II.

Whether prescription applies to bar any question respecting the validity of the Deed of Absolute Sale dated 25
October 1969? Whether prescription applies to bar any collateral attack on the validity of the deed of absolute
sale executed 21 years earlier?

III.

Whether the Court of Appeals correctly ruled in nullifying the Deed of Extrajudicial Partition because Conrado
Ureta signed the same without the written authority from his siblings in contravention of Article 1878 in relation
to Article 1390 of the Civil Code and in relation therewith, whether the defense of ratification and/or preterition
raised for the first time on appeal may be entertained?

The issues presented for resolution by the Heirs of Alfonso in G.R. No. 165930 are as follows:

I.

Whether or not grave error was committed by the Trial Court and Court of Appeals in declaring the Deed of Sale
of subject properties as absolutely simulated and null and void thru parol evidence based on their factual
findings as to its fictitious nature, and there being waiver of any objection based on violation of the parol
evidence rule.

II.

Whether or not the Court of Appeals was correct in holding that Conrado Ureta’s lack of capacity to give his co-
heirs’ consent to the Extra-Judicial Partition rendered the same voidable.

III.

Granting arguendo that Conrado Ureta was not authorized to represent his co-heirs and there was no ratification
, whether or not the Court of Appeals was correct in ordering the remand of the case to the Regional Trial Court
for partition of the estate of Alfonso Ureta.

IV.

Since the sale in favor of Policronio Ureta Sr. was null and void ab initio, the properties covered therein formed
part of the estate of the late Alfonso Ureta and was correctly included in the Deed of Extrajudicial Partition even
 if no prior action for nullification of the sale was filed by the heirs of Liberato Ureta.

V.

Whether or not the heirs of Policronio Ureta Sr. can claim that estoppel based on Article 1412 of the Civil Code
as well as the issue of prescription can still be raised on appeal.

These various contentions revolve around two major issues, to wit: (1) whether the Deed of Sale is valid, and (2) whether the
Deed of Extra-Judicial Partition is valid. Thus, the assigned errors shall be discussed jointly and in seriatim.

The Ruling of the Court

Validity of the Deed of Sale

Two veritable legal presumptions bear on the validity of the Deed of Sale: (1) that there was sufficient consideration for the
contract; and (2) that it was the result of a fair and regular private transaction. If shown to hold, these presumptions infer prima
facie the transaction’s validity, except that it must yield to the evidence adduced.10

As will be discussed below, the evidence overcomes these two presumptions.

Absolute Simulation

First, the Deed of Sale was not the result of a fair and regular private transaction because it was absolutely simulated.

The Heirs of Policronio argued that the land had been validly sold to Policronio as the Deed of Sale contained all the essential
elements of a valid contract of sale, by virtue of which, the subject properties were transferred in his name as evidenced by the
tax declaration. There being no invalidation prior to the execution of the Deed of Extra-Judicial Partition, the probity and integrity
of the Deed of Sale should remain undiminished and accorded respect as it was a duly notarized public instrument.

The Heirs of Policronio posited that his loyal services to his father and his being the eldest among Alfonso’s children, might have
prompted the old man to sell the subject lands to him at a very low price as an advance inheritance. They explained that
Policronio’s failure to take possession of the subject lands and to claim their produce manifests a Filipino family practice wherein
a child would take possession and enjoy the fruits of the land sold by a parent only after the latter’s death. Policronio simply
treated the lands the same way his father Alfonso treated them - where his children enjoyed usufructuary rights over the
properties, as opposed to appropriating them exclusively to himself. They contended that Policronio’s failure to take actual
possession of the lands did not prove that he was not the owner as he was merely exercising his right to dispose of them. They
argue that it was an error on the part of the CA to conclude that ownership by Policronio was not established by his failure to
possess the properties sold. Instead, emphasis should be made on the fact that the tax declarations, being indicia of possession,
were in Policronio’s name.

They further argued that the Heirs of Alfonso failed to appreciate that the Deed of Sale was clear enough to convey the subject
parcels of land. Citing jurisprudence, they contend that there is a presumption that an instrument sets out the true agreement of
the parties thereto and that it was executed for valuable consideration,11 and where there is no doubt as to the intention of the
parties to a contract, the literal meaning of the stipulation shall control.12 Nowhere in the Deed of Sale is it indicated that the
transfer was only for taxation purposes. On the contrary, the document clearly indicates that the lands were sold. Therefore, they
averred that the literal meaning of the stipulation should control.

The Court disagrees.

The Court finds no cogent reason to deviate from the finding of the CA that the Deed of Sale is null and void for being absolutely
simulated. The Civil Code provides:

Art. 1345. Simulation of a contract may be absolute or relative. The former takes place when the parties do not intend to be
bound at all; the latter, when the parties conceal their true agreement.

Art. 1346. An absolutely simulated or fictitious contract is void. A relative simulation, when it does not prejudice a third person
and is not intended for any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their
real agreement.

Valerio v. Refresca13 is instructive on the matter of simulation of contracts:

In absolute simulation, there is a colorable contract but it has no substance as the parties have no intention to be bound by it.
The main characteristic of an absolute simulation is that the apparent contract is not really desired or intended to produce legal
effect or in any way alter the juridical situation of the parties. As a result, an absolutely simulated or fictitious contract is void, and
the parties may recover from each other what they may have given under the contract. However, if the parties state a false cause
in the contract to conceal their real agreement, the contract is relatively simulated and the parties are still bound by their real
agreement. Hence, where the essential requisites of a contract are present and the simulation refers only to the content or terms
of the contract, the agreement is absolutely binding and enforceable between the parties and their successors in interest.

Lacking, therefore, in an absolutely simulated contract is consent which is essential to a valid and enforceable contract.14 Thus,
where a person, in order to place his property beyond the reach of his creditors, simulates a transfer of it to another, he does not
really intend to divest himself of his title and control of the property; hence, the deed of transfer is but a sham.15 Similarly, in this
case, Alfonso simulated a transfer to Policronio purely for taxation purposes, without intending to transfer ownership over the
subject lands.

The primary consideration in determining the true nature of a contract is the intention of the parties. If the words of a contract
appear to contravene the evident intention of the parties, the latter shall prevail. Such intention is determined not only from the
express terms of their agreement, but also from the contemporaneous and subsequent acts of the parties.16 The true intention of
the parties in this case was sufficiently proven by the Heirs of Alfonso.

The Heirs of Alfonso established by a preponderance of evidence17 that the Deed of Sale was one of the four (4) absolutely
simulated Deeds of Sale which involved no actual monetary consideration, executed by Alfonso in favor of his children, Policronio
, Liberato, and Prudencia, and his second wife, Valeriana, for taxation purposes.

Amparo Castillo, the daughter of Liberato, testified, to wit:

Q: Now sometime in the year 1969 can you recall if your grandfather and his children [met] in your house?

A: Yes sir, that was sometime in October 1969 when they [met] in our house, my grandfather, my late uncle Policronio Ureta, my
late uncle Liberato Ureta, my uncle Francisco Ureta, and then my auntie Prudencia Ureta they talk[ed] about, that idea came from
my uncle Francisco Ureta to [sell] some parcels of land to his children to lessen the inheritance tax whatever happened to my
grandfather, actually no money involved in this sale.

Q: Now you said there was that agreement, verbal agreement. [W]here were you when this Alfonso Ureta and his children gather[
ed] in your house?

A: I was near them in fact I heard everything they were talking [about]
 xxx

Q: Were there documents of sale executed by Alfonso Ureta in furtherance of their verbal agreement?

A: Yes sir.

Q: To whom in particular did your grandfather Alfonso Ureta execute this deed of sale without money consideration according to
you?

A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero.

Q: And who else?

A: To Valeriana dela Cruz.

Q: How about your father?

A: He has.18

The other Deeds of Sale executed by Alfonso in favor of his children Prudencia and Liberato, and second wife Valeriana, all
bearing the same date of execution, were duly presented in evidence by the Heirs of Alfonso, and were uncontested by the Heirs
of Policronio. The lands which were the subject of these Deeds of Sale were in fact included in the Deed of Extra-Judicial
Partition executed by all the heirs of Alfonso, where it was expressly stipulated:

That the above-named Amparo U. Castillo, Prudencia U. Paradero, Conrado B. Ureta and Merlinda U. Rivera do hereby recognize
and acknowledge as a fact that the properties presently declared in their respective names or in the names of their respective
parents and are included in the foregoing instrument are actually the properties of the deceased Alfonso Ureta and were
transferred only for the purpose of effective administration and development and convenience in the payment of taxes and,
therefore, all instruments conveying or affecting the transfer of said properties are null and void from the beginning.19

As found by the CA, Alfonso continued to exercise all the rights of an owner even after the execution of the Deeds of Sale. It was
undisputed that Alfonso remained in possession of the subject lands and enjoyed their produce until his death. No credence can
be given to the contention of the Heirs of Policrionio that their father did not take possession of the subject lands or enjoyed the
fruits thereof in deference to a Filipino family practice. Had this been true, Policronio should have taken possession of the
subject lands after his father died. On the contrary, it was admitted that neither Policronio nor his heirs ever took possession of
the subject lands from the time they were sold to him, and even after the death of both Alfonso and Policronio.

It was also admitted by the Heirs of Policronio that the tenants of the subject lands never turned over the produce of the
properties to Policronio or his heirs but only to Alfonso and the administrators of his estate. Neither was there a demand for their
delivery to Policronio or his heirs. Neither did Policronio ever pay real estate taxes on the properties, the only payment on record
being those made by his heirs in 1996 and 1997 ten years after his death. In sum, Policronio never exercised any rights pertaining
to an owner over the subject lands.

The most protuberant index of simulation of contract is the complete absence of an attempt in any manner on the part of the
ostensible buyer to assert rights of ownership over the subject properties. Policronio’s failure to take exclusive possession of the
subject properties or, in the alternative, to collect rentals, is contrary to the principle of ownership. Such failure is a clear badge of
simulation that renders the whole transaction void. 20

It is further telling that Policronio never disclosed the existence of the Deed of Sale to his children. This, coupled with Policronio’s
failure to exercise any rights pertaining to an owner of the subject lands, leads to the conclusion that he was aware that the
transfer was only made for taxation purposes and never intended to bind the parties thereto.

As the above factual circumstances remain unrebutted by the Heirs of Policronio, the factual findings of the RTC, which were
affirmed by the CA, remain binding and conclusive upon this Court.21

It is clear that the parties did not intend to be bound at all, and as such, the Deed of Sale produced no legal effects and did not
alter the juridical situation of the parties. The Deed of Sale is, therefore, void for being absolutely simulated pursuant to Article
1409 (2) of the Civil Code which provides:

Art. 1409. The following contracts are inexistent and void from the beginning:

xxx

(2) Those which are absolutely simulated or fictitious;

xxx

For guidance, the following are the most fundamental characteristics of void or inexistent contracts:

1) As a general rule, they produce no legal effects whatsoever in accordance with the principle "quod nullum est
nullum producit effectum."

2) They are not susceptible of ratification.

3) The right to set up the defense of inexistence or absolute nullity cannot be waived or renounced.

4) The action or defense for the declaration of their inexistence or absolute nullity is imprescriptible.

5) The inexistence or absolute nullity of a contract cannot be invoked by a person whose interests are not directly
affected.22

Since the Deed of Sale is void, the subject properties were properly included in the Deed of Extra-Judicial Partition of the estate of
Alfonso.

Absence and Inadequacy of Consideration

The second presumption is rebutted by the lack of consideration for the Deed of Sale.

In their Answer,23 the Heirs of Alfonso initially argued that the Deed of Sale was void for lack of consideration, and even granting
that there was consideration, such was inadequate. The Heirs of Policronio counter that the defenses of absence or inadequacy
of consideration are not grounds to render a contract void.

The Heirs of Policronio contended that under Article 1470 of the Civil Code, gross inadequacy of the price does not affect a
contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act
or contract. Citing jurisprudence, they argued that inadequacy of monetary consideration does not render a conveyance
inexistent as liberality may be sufficient cause for a valid contract, whereas fraud or bad faith may render it either rescissible or
voidable, although valid until annulled.24Thus, they argued that if the contract suffers from inadequate consideration, it remains
valid until annulled, and the remedy of rescission calls for judicial intervention, which remedy the Heirs of Alfonso failed to take.

It is further argued that even granting that the sale of the subject lands for a consideration of ₱2,000.00 was inadequate, absent
any evidence of the fair market value of the land at the time of its sale, it cannot be concluded that the price at which it was sold
was inadequate.25 As there is nothing in the records to show that the Heirs of Alfonso supplied the true value of the land in 1969,
the amount of ₱2,000.00 must thus stand as its saleable value.

On this issue, the Court finds for the Heirs of Alfonso.

For lack of consideration, the Deed of Sale is once again found to be void. It states that Policronio paid, and Alfonso received, the
₱2,000.00 purchase price on the date of the signing of the contract:

That I, ALFONSO F. URETA, x x x for and in consideration of the sum of TWO THOUSAND (₱2,000.00) PESOS, Philippine Currency,
to me in hand paid by POLICRONIO M. URETA, x x x, do hereby CEDE, TRANSFER, and CONVEY, by way of absolute sale, x x x six (
6) parcels of land x x x.26 [Emphasis ours]

Although, on its face, the Deed of Sale appears to be supported by valuable consideration, the RTC found that there was no
money involved in the sale.27 This finding was affirmed by the CA in ruling that the sale is void for being absolutely simulated.
Considering that there is no cogent reason to deviate from such factual findings, they are binding on this Court.

It is well-settled in a long line of cases that where a deed of sale states that the purchase price has been paid but in fact has
never been paid, the deed of sale is null and void for lack of consideration.28 Thus, although the contract states that the purchase
price of ₱2,000.00 was paid by Policronio to Alfonso for the subject properties, it has been proven that such was never in fact
paid as there was no money involved. It must, therefore, follow that the Deed of Sale is void for lack of consideration.

Given that the Deed of Sale is void, it is unnecessary to discuss the issue on the inadequacy of consideration.

Parol Evidence and Hearsay

The Heirs of Policronio aver that the rules on parol evidence and hearsay were violated by the CA in ruling that the Deed of Sale
was void.

They argued that based on the parol evidence rule, the Heirs of Alfonso and, specifically, Amparo Castillo, were not in a position
to prove the terms outside of the contract because they were not parties nor successors-in-interest in the Deed of Sale in
question. Thus, it is argued that the testimony of Amparo Castillo violates the parol evidence rule.

Stemming from the presumption that the Heirs of Alfonso were not parties to the contract, it is also argued that the parol
evidence rule may not be properly invoked by either party in the litigation against the other, where at least one of the parties to the
suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert
a right originating in the instrument or the relation established thereby.29

Their arguments are untenable.

The objection against the admission of any evidence must be made at the proper time, as soon as the grounds therefor become
reasonably apparent, and if not so made, it will be understood to have been waived. In the case of testimonial evidence, the
objection must be made when the objectionable question is asked or after the answer is given if the objectionable features
become apparent only by reason of such answer.30 In this case, the Heirs of Policronio failed to timely object to the testimony of
Amparo Castillo and they are, thus, deemed to have waived the benefit of the parol evidence rule.

Granting that the Heirs of Policronio timely objected to the testimony of Amparo Castillo, their argument would still fail.

Section 9 of Rule 130 of the Rules of Court provides:

Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such
terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his
pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the
written agreement.

The term "agreement" includes wills.

[Emphasis ours]

Paragraphs (b) and (c) are applicable in the case at bench.

The failure of the Deed of Sale to express the true intent and agreement of the parties was clearly put in issue in the Answer31 of
the Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was only made to lessen the payment of estate and
inheritance taxes and not meant to transfer ownership. The exception in paragraph (b) is allowed to enable the court to ascertain
the true intent of the parties, and once the intent is clear, it shall prevail over what the document appears to be on its face.32 As
the true intent of the parties was duly proven in the present case, it now prevails over what appears on the Deed of Sale.

The validity of the Deed of Sale was also put in issue in the Answer, and was precisely one of the issues submitted to the RTC for
resolution.33 The operation of the parol evidence rule requires the existence of a valid written agreement. It is, thus, not applicable
in a proceeding where the validity of such agreement is the fact in dispute, such as when a contract may be void for lack of
consideration.34 Considering that the Deed of Sale has been shown to be void for being absolutely simulated and for lack of
consideration, the Heirs of Alfonso are not precluded from presenting evidence to modify, explain or add to the terms of the
written agreement.

The Heirs of Policronio must be in a state of confusion in arguing that the Heirs of Alfonso may not question the Deed of Sale for
not being parties or successors-in-interest therein on the basis that the parol evidence rule may not be properly invoked in a
proceeding or litigation where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in
question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established
thereby. If their argument was to be accepted, then the Heirs of Policronio would themselves be precluded from invoking the
parol evidence rule to exclude the evidence of the Heirs of Alfonso.

Indeed, the applicability of the parol evidence rule requires that the case be between parties and their successors-in-interest.35 In
this case, both the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of the parties to the Deed of Sale as
they claim rights under Alfonso and Policronio, respectively. The parol evidence rule excluding evidence aliunde, however, still
cannot apply because the present case falls under two exceptions to the rule, as discussed above.

With respect to hearsay, the Heirs of Policronio contended that the rule on hearsay was violated when the testimony of Amparo
Castillo was given weight in proving that the subject lands were only sold for taxation purposes as she was a person alien to the
contract. Even granting that they did not object to her testimony during trial, they argued that it should not have been appreciated
by the CA because it had no probative value whatsoever.36

The Court disagrees.

It has indeed been held that hearsay evidence whether objected to or not cannot be given credence for having no probative value.
37 This principle, however, has been relaxed in cases where, in addition to the failure to object to the admissibility of the subject

evidence, there were other pieces of evidence presented or there were other circumstances prevailing to support the fact in issue.
In Top-Weld Manufacturing, Inc. v. ECED S.A.,38 this Court held:

Hearsay evidence alone may be insufficient to establish a fact in an injunction suit (Parker v. Furlong, 62 P. 490) but, when no
objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves. (Smith v. Delaware
& Atlantic Telegraph & Telephone Co., 51 A 464). Although we should warn of the undesirability of issuing judgments solely on
the basis of the affidavits submitted, where as here, said affidavits are overwhelming, uncontroverted by competent evidence and
not inherently improbable, we are constrained to uphold the allegations of the respondents regarding the multifarious violations
of the contracts made by the petitioner.

In the case at bench, there were other prevailing circumstances which corroborate the testimony of Amparo Castillo. First, the
other Deeds of Sale which were executed in favor of Liberato, Prudencia, and Valeriana on the same day as that of Policronio’s
were all presented in evidence. Second, all the properties subject therein were included in the Deed of Extra-Judicial Partition of
the estate of Alfonso. Third, Policronio, during his lifetime, never exercised acts of ownership over the subject properties (as he
never demanded or took possession of them, never demanded or received the produce thereof, and never paid real estate taxes
thereon). Fourth, Policronio never informed his children of the sale.

As the Heirs of Policronio failed to controvert the evidence presented, and to timely object to the testimony of Amparo Castillo,
both the RTC and the CA correctly accorded probative weight to her testimony.

Prior Action Unnecessary

The Heirs of Policronio averred that the Heirs of Alfonso should have filed an action to declare the sale void prior to executing the
Deed of Extra-Judicial Partition. They argued that the sale should enjoy the presumption of regularity, and until overturned by a
court, the Heirs of Alfonso had no authority to include the land in the inventory of properties of Alfonso’s estate. By doing so, they
arrogated upon themselves the power of invalidating the Deed of Sale which is exclusively vested in a court of law which, in turn,
can rule only upon the observance of due process. Thus, they contended that prescription, laches, or estoppel have set in to
militate against assailing the validity of the sale.

The Heirs of Policronio are mistaken.

A simulated contract of sale is without any cause or consideration, and is, therefore, null and void; in such case, no independent
action to rescind or annul the contract is necessary, and it may be treated as non-existent for all purposes.39 A void or inexistent
contract is one which has no force and effect from the beginning, as if it has never been entered into, and which cannot be
validated either by time or ratification. A void contract produces no effect whatsoever either against or in favor of anyone; it does
not create, modify or extinguish the juridical relation to which it refers.40 Therefore, it was not necessary for the Heirs of Alfonso
to first file an action to declare the nullity of the Deed of Sale prior to executing the Deed of Extra-Judicial Partition.

Personality to Question Sale

The Heirs of Policronio contended that the Heirs of Alfonso are not parties, heirs, or successors-in-interest under the
contemplation of law to clothe them with the personality to question the Deed of Sale. They argued that under Article 1311 of the
Civil Code, contracts take effect only between the parties, their assigns and heirs. Thus, the genuine character of a contract which
personally binds the parties cannot be put in issue by a person who is not a party thereto. They posited that the Heirs of Alfonso
were not parties to the contract; neither did they appear to be beneficiaries by way of assignment or inheritance. Unlike
themselves who are direct heirs of Policronio, the Heirs of Alfonso are not Alfonso’s direct heirs. For the Heirs of Alfonso to
qualify as parties, under Article 1311 of the Civil Code, they must first prove that they are either heirs or assignees. Being neither,
they have no legal standing to question the Deed of Sale.

They further argued that the sale cannot be assailed for being barred under Article 1421 of the Civil Code which provides that the
defense of illegality of a contract is not available to third persons whose interests are not directly affected.

Again, the Court disagrees.

Article 1311 and Article 1421 of the Civil Code provide:

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, x x x

Art. 1421. The defense of illegality of contracts is not available to third persons whose interests are not directly affected.

The right to set up the nullity of a void or non-existent contract is not limited to the parties, as in the case of annullable or
voidable contracts; it is extended to third persons who are directly affected by the contract. Thus, where a contract is absolutely
simulated, even third persons who may be prejudiced thereby may set up its inexistence.41 The Heirs of Alfonso are the children
of Alfonso, with his deceased children represented by their children (Alfonso’s grandchildren). The Heirs of Alfonso are clearly his
heirs and successors-in-interest and, as such, their interests are directly affected, thereby giving them the right to question the
legality of the Deed of Sale.

Inapplicability of Article 842

The Heirs of Policronio further argued that even assuming that the Heirs of Alfonso have an interest in the Deed of Sale, they
would still be precluded from questioning its validity. They posited that the Heirs of Alfonso must first prove that the sale of
Alfonso’s properties to Policronio substantially diminished their successional rights or that their legitimes would be unduly
prejudiced, considering that under Article 842 of the Civil Code, one who has compulsory heirs may dispose of his estate
provided that he does not contravene the provisions of the Civil Code with regard to the legitime of said heirs. Having failed to do
so, they argued that the Heirs of Alfonso should be precluded from questioning the validity of the Deed of Sale.

Still, the Court disagrees.

Article 842 of the Civil Code provides:

Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having
capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with
regard to the legitime of said heirs.

This article refers to the principle of freedom of disposition by will. What is involved in the case at bench is not a disposition by
will but by Deed of Sale. Hence, the Heirs of Alfonso need not first prove that the disposition substantially diminished their
successional rights or unduly prejudiced their legitimes.
Inapplicability of Article 1412

The Heirs of Policronio contended that even assuming that the contract was simulated, the Heirs of Alfonso would still be barred
from recovering the properties by reason of Article 1412 of the Civil Code, which provides that if the act in which the unlawful or
forbidden cause does not constitute a criminal offense, and the fault is both on the contracting parties, neither may recover what
he has given by virtue of the contract or demand the performance of the other’s undertaking. As the Heirs of Alfonso alleged that
the purpose of the sale was to avoid the payment of inheritance taxes, they cannot take from the Heirs of Policronio what had
been given to their father.

On this point, the Court again disagrees.

Article 1412 of the Civil Code is as follows:

Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the following rules
shall be observed:

(1) When the fault is on the part of both contracting parties, neither may recover what he has given by virtue of the contract, or
demand the performance of the other’s undertaking;

(2) When only one of the contracting parties is at fault, he cannot recover what he has given by reason of the contract, or ask for
the fulfillment of what has been promised him. The other, who is not at fault, may demand the return of what he has given
without any obligation to comply with his promise.

Article 1412 is not applicable to fictitious or simulated contracts, because they refer to contracts with an illegal cause or subject-
matter.42 This article presupposes the existence of a cause, it cannot refer to fictitious or simulated contracts which are in reality
non-existent.43As it has been determined that the Deed of Sale is a simulated contract, the provision cannot apply to it.

Granting that the Deed of Sale was not simulated, the provision would still not apply. Since the subject properties were included
as properties of Alfonso in the Deed of Extra-Judicial Partition, they are covered by corresponding inheritance and estate taxes.
Therefore, tax evasion, if at all present, would not arise, and Article 1412 would again be inapplicable.

Prescription

From the position that the Deed of Sale is valid and not void, the Heirs of Policronio argued that any question regarding its validity
should have been initiated through judicial process within 10 years from its notarization in accordance with Article 1144 of the
Civil Code. Since 21 years had already elapsed when the Heirs of Alfonso assailed the validity of the Deed of Sale in 1996,
prescription had set in. Furthermore, since the Heirs of Alfonso did not seek to nullify the tax declarations of Policronio, they had
impliedly acquiesced and given due recognition to the Heirs of Policronio as the rightful inheritors and should, thus, be barred
from laying claim on the land.

The Heirs of Policronio are mistaken.

Article 1410 of the Civil Code provides:

Art. 1410. The action for the declaration of the inexistence of a contract does not prescribe.

This is one of the most fundamental characteristics of void or inexistent contracts.44

As the Deed of Sale is a void contract, the action for the declaration of its nullity, even if filed 21 years after its execution, cannot
be barred by prescription for it is imprescriptible. Furthermore, the right to set up the defense of inexistence or absolute nullity
cannot be waived or renounced.45 Therefore, the Heirs of Alfonso cannot be precluded from setting up the defense of its
inexistence.

Validity of the Deed of Extra-Judicial Partition

The Court now resolves the issue of the validity of the Deed of Extra-Judicial Partition.

Unenforceability

The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed of Extra-Judicial Partition due to the incapacity of
Conrado to give the consent of his co-heirs for lack of a special power of attorney. They contended that what was involved was
not the capacity to give consent in behalf of the co-heirs but the authority to represent them. They argue that the Deed of Extra-
Judicial Partition is not a voidable or an annullable contract under Article 1390 of the Civil Code, but rather, it is an unenforceable
or, more specifically, an unauthorized contract under Articles 1403 (1) and 1317 of the Civil Code. As such, the Deed of Extra-
Judicial Partition should not be annulled but only be rendered unenforceable against the siblings of Conrado.

They further argued that under Article 1317 of the Civil Code, when the persons represented without authority have ratified the
unauthorized acts, the contract becomes enforceable and binding. They contended that the Heirs of Policronio ratified the Deed
of Extra-Judicial Partition when Conrado took possession of one of the parcels of land adjudicated to him and his siblings, and
when another parcel was used as collateral for a loan entered into by some of the Heirs of Policronio. The Deed of Extra-Judicial
Partition having been ratified and its benefits accepted, the same thus became enforceable and binding upon them.

The Heirs of Alfonso averred that granting arguendo that Conrado was not authorized to represent his co-heirs and there was no
ratification, the CA should not have remanded the case to the RTC for partition of Alfonso’s estate. They argued that the CA
should not have applied the Civil Code general provision on contracts, but the special provisions dealing with succession and
partition. They contended that contrary to the ruling of the CA, the extra-judicial parition was not an act of strict dominion, as it
has been ruled that partition of inherited land is not a conveyance but a confirmation or ratification of title or right to the land.46
 Therefore, the law requiring a special power of attorney should not be applied to partitions.

On the other hand, the Heirs of Policronio insisted that the CA pronouncement on the invalidity of the Deed of Extra-Judicial
Partition should not be disturbed because the subject properties should not have been included in the estate of Alfonso, and
because Conrado lacked the written authority to represent his siblings. They argued with the CA in ruling that a special power of
attorney was required before Conrado could sign in behalf of his co-heirs.

The Heirs of Policronio denied that they ratified the Deed of Extra-Judicial Partition. They claimed that there is nothing on record
that establishes that they ratified the partition. Far from doing so, they precisely questioned its execution by filing a complaint.
They further argued that under Article 1409 (3) of the Civil Code, ratification cannot be invoked to validate the illegal act of
including in the partition those properties which do not belong to the estate as it provides another mode of acquiring ownership
not sanctioned by law.

Furthermore, the Heirs of Policronio contended that the defenses of unenforceability, ratification, and preterition are being raised
for the first time on appeal by the Heirs of Alfonso. For having failed to raise them during the trial, the Heirs of Alfonso should be
deemed to have waived their right to do so.

The Court agrees in part with the Heirs of Alfonso.

To begin, although the defenses of unenforceability, ratification and preterition were raised by the Heirs of Alfonso for the first
time on appeal, they are concomitant matters which may be taken up. As long as the questioned items bear relevance and close
relation to those specifically raised, the interest of justice would dictate that they, too, must be considered and resolved. The rule
that only theories raised in the initial proceedings may be taken up by a party thereto on appeal should refer to independent, not
concomitant matters, to support or oppose the cause of action.47

In the RTC, the Heirs of Policronio alleged that Conrado’s consent was vitiated by mistake and undue influence, and that he
signed the Deed of Extra-Judicial Partition without the authority or consent of his co-heirs.

The RTC found that Conrado’s credibility had faltered, and his claims were rejected by the RTC as gratuitous assertions. On the
basis of such, the RTC ruled that Conrado duly represented his siblings in the Deed of Extra-Judicial Partition.

On the other hand, the CA annulled the Deed of Extra-Judicial Partition under Article 1390 (1) of the Civil Code, holding that a
special power of attorney was lacking as required under Article 1878 (5) and (15) of the Civil Code. These articles are as follows:

Art. 1878. Special powers of attorney are necessary in the following cases:

xxx

(5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a
valuable consideration;

xxx

(15) Any other act of strict dominion.

Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting
parties:

(1) Those where one of the parties is incapable of giving consent to a contract;

(2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud.

These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification.

This Court finds that Article 1878 (5) and (15) is inapplicable to the case at bench. It has been held in several cases48 that
partition among heirs is not legally deemed a conveyance of real property resulting in change of ownership. It is not a transfer of
property from one to the other, but rather, it is a confirmation or ratification of title or right of property that an heir is renouncing in
favor of another heir who accepts and receives the inheritance. It is merely a designation and segregation of that part which
belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore, be considered as an act of strict dominion. Hence, a
special power of attorney is not necessary.

In fact, as between the parties, even an oral partition by the heirs is valid if no creditors are affected. The requirement of a written
memorandum under the statute of frauds does not apply to partitions effected by the heirs where no creditors are involved
considering that such transaction is not a conveyance of property resulting in change of ownership but merely a designation and
segregation of that part which belongs to each heir.49

Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates the incapacity of a party to give consent to a contract. What
is involved in the case at bench though is not Conrado’s incapacity to give consent to the contract, but rather his lack of authority
to do so. Instead, Articles 1403 (1), 1404, and 1317 of the Civil Code find application to the circumstances prevailing in this case.
They are as follows:
Art. 1403. The following contracts are unenforceable, unless they are ratified:

(1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has
acted beyond his powers;

Art. 1404. Unauthorized contracts are governed by Article 1317 and the principles of agency in Title X of this Book.

Art. 1317. No one may contract in the name of another without being authorized by the latter, or unless he has by law a right to
represent him.

A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his
powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed,
before it is revoked by the other contracting party.

Such was similarly held in the case of Badillo v. Ferrer:

The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract under Article 1390 of the New Civil Code.
Article 1390 renders a contract voidable if one of the parties is incapable of giving consent to the contract or if the contracting
party’s consent is vitiated by mistake, violence, intimidation, undue influence or fraud. x x x

The deed of extrajudicial parition and sale is an unenforceable or, more specifically, an unauthorized contract under Articles 1403
(1) and 1317 of the New Civil Code.50

Therefore, Conrado’s failure to obtain authority from his co-heirs to sign the Deed of Extra-Judicial Partition in their behalf did not
result in his incapacity to give consent so as to render the contract voidable, but rather, it rendered the contract valid but
unenforceable against Conrado’s co-heirs for having been entered into without their authority.

A closer review of the evidence on record, however, will show that the Deed of Extra-Judicial Partition is not unenforceable but, in
fact, valid, binding and enforceable against all the Heirs of Policronio for having given their consent to the contract. Their consent
to the Deed of Extra-Judicial Partition has been proven by a preponderance of evidence.

Regarding his alleged vitiated consent due to mistake and undue influence to the Deed of Extra-Judicial Partition, Conrado
testified, to wit:

Q: Mr. Ureta you remember having signed a document entitled deed of extra judicial partition consisting of 11 pages and which
have previously [been] marked as Exhibit I for the plaintiffs?

A: Yes sir.

Q: Can you recall where did you sign this document?

A: The way I remember I signed that in our house.

Q: And who requested or required you to sign this document?

A: My aunties.

Q: Who in particular if you can recall?

A: Nay Pruding Panadero.

Q: You mean that this document that you signed was brought to your house by your Auntie Pruding Pa[r]adero [who] requested
you to sign that document?

A: When she first brought that document I did not sign that said document because I [did] no[t] know the contents of that
document.

Q: How many times did she bring this document to you [until] you finally signed the document?

A: Perhaps 3 times.

Q: Can you tell the court why you finally signed it?

A: Because the way she explained it to me that the land of my grandfather will be partitioned.

Q: When you signed this document were your brothers and sisters who are your co-plaintiffs in this case aware of your act to sign
this document?

A: They do not know.

xxx

Q: After you have signed this document did you inform your brothers and sisters that you have signed this document?

No I did not. 51

xxx

Q: Now you read the document when it was allegedly brought to your house by your aunt Pruding Pa[r]adero?

A: I did not read it because as I told her I still want to ask the advise of my brothers and sisters.

Q: So do I get from you that you have never read the document itself or any part thereof?

A: I have read the heading.

xxx

Q: And why is it that you did not read all the pages of this document because I understand that you know also how to read in
English?

A: Because the way Nay Pruding explained to me is that the property of my grandfather will be partitioned that is why I am so
happy.

xxx

Q: You mean to say that after you signed this deed of extra judicial partition up to the present you never informed them?

A: Perhaps they know already that I have signed and they read already the document and they have read the document.

Q: My question is different, did you inform them?

A: The document sir? I did not tell them.

Q: Even until now?

A: Until now I did not inform them.52

This Court finds no cogent reason to reverse the finding of the RTC that Conrado’s explanations were mere gratuitous assertions
not entitled to any probative weight. The RTC found Conrado’s credibility to have faltered when he testified that perhaps his
siblings were already aware of the Deed of Extra-Judicial Partition. The RTC was in the best position to judge the credibility of the
witness’ testimony. The CA also recognized that Conrado’s consent was not vitiated by mistake and undue influence as it
required a special power of attorney in order to bind his co-heirs and, as such, the CA thereby recognized that his signature was
binding to him but not with respect to his co-heirs. Findings of fact of the trial court, particularly when affirmed by the CA, are
binding to this Court.53

Furthermore, this Court notes other peculiarities in Conrado’s testimony. Despite claims of undue influence, there is no indication
that Conrado was forced to sign by his aunt, Prudencia Paradero. In fact, he testified that he was happy to sign because his
grandfather’s estate would be partitioned. Conrado, thus, clearly understood the document he signed. It is also worth noting that
despite the document being brought to him on three separate occasions and indicating his intention to inform his siblings about
it, Conrado failed to do so, and still neglected to inform them even after he had signed the partition. All these circumstances
negate his claim of vitiated consent. Having duly signed the Deed of Extra-Judicial Partition, Conrado is bound to it. Thus, it is
enforceable against him.

Although Conrado’s co-heirs claimed that they did not authorize Conrado to sign the Deed of Extra-Judicial Partition in their
behalf, several circumstances militate against their contention.

First, the Deed of Extra-Judicial Partition was executed on April 19, 1989, and the Heirs of Policronio claim that they only came to
know of its existence on July 30, 1995 through an issue of the Aklan Reporter. It is difficult to believe that Conrado did not inform
his siblings about the Deed of Extra-Judicial Partition or at least broach its subject with them for more than five years from the
time he signed it, especially after indicating in his testimony that he had intended to do so.

Second, Conrado retained possession of one of the parcels of land adjudicated to him and his co-heirs in the Deed of Extra-
Judicial Partition.

Third, after the execution of the partition on April 19, 1989 and more than a year before they claimed to have discovered the
existence of the Deed of Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio, namely, Rita Solano, Macario
Ureta, Lilia Tayco, and Venancio Ureta executed on June 1, 1994, a Special Power of Attorney54 in favor of their sister Gloria
Gonzales, authorizing her to obtain a loan from a bank and to mortgage one of the parcels of land adjudicated to them in the
Deed of Extra-Judicial Partition to secure payment of the loan. They were able to obtain the loan using the land as collateral, over
which a Real Estate Mortgage55 was constituted. Both the Special Power of Attorney and the Real Estate Mortgage were
presented in evidence in the RTC, and were not controverted or denied by the Heirs of Policronio.

Fourth, in the letter dated August 15, 1995, sent by the counsel of the Heirs of Policronio to the Heirs of Alfonso requesting for
amicable settlement, there was no mention that Conrado’s consent to the Deed of Extra-Judicial Partition was vitiated by mistake
and undue influence or that they had never authorized Conrado to represent them or sign the document on their behalf. It is
questionable for such a pertinent detail to have been omitted. The body of said letter is reproduced hereunder as follows:

Greetings:

Your nephews and nieces, children of your deceased brother Policronio Ureta, has referred to me for appropriate legal action the
property they inherited from their father consisting of six (6) parcels of land which is covered by a Deed of Absolute Sale dated
October 25, 1969. These properties ha[ve] already been transferred to the name of their deceased father immediately after the
sale, machine copy of the said Deed of Sale is hereto attached for your ready reference.

Lately, however, there was published an Extra-judicial Partition of the estate of Alfonso Ureta, which to the surprise of my clients
included the properties already sold to their father before the death of said Alfonso Ureta. This inclusion of their property is
erroneous and illegal because these properties were covered by the Deed of Absolute Sale in favor of their father Policronio Ureta
no longer form part of the estate of Alfonso Ureta. Since Policronio Ureta has [sic] died in 1974 yet, these properties have passed
by hereditary succession to his children who are now the true and lawful owners of the said properties.

My clients are still entitled to a share in the estate of Alfonso Ureta who is also their grandfather as they have stepped into the
shoes of their deceased father Policronio Ureta. But this estate of Alfonso Ureta should already exclude the six (6) parcels of land
covered by the Deed of Absolute Sale in favor of Policronio Ureta.

My clients cannot understand why the properties of their late father [should] be included in the estate of their grandfather and be
divided among his brothers and sisters when said properties should only be divided among themselves as children of Policronio
Ureta.

Since this matter involves very close members of the same family, I have counseled my clients that an earnest effort towards a
compromise or amicable settlement be first explored before resort to judicial remedy is pursued. And a compromise or amicable
settlement can only be reached if all the parties meet and discuss the problem with an open mind. To this end, I am suggesting a
meeting of the parties on September 16, 1995 at 2:00 P.M. at B Place Restaurant at C. Laserna St., Kalibo, Aklan. It would be best
if the parties can come or be represented by their duly designated attorney-in-fact together with their lawyers if they so desire so
that the problem can be discussed unemotionally and intelligently.

I would, however, interpret the failure to come to the said meeting as an indication that the parties are not willing to or interested
in amicable settlement of this matter and as a go signal for me to resort to legal and/or judicial remedies to protest the rights of
my clients.

Thank you very much.56

Based on the foregoing, this Court concludes that the allegation of Conrado’s vitiated consent and lack of authority to sign in
behalf of his co-heirs was a mere afterthought on the part of the Heirs of Policronio. It appears that the Heirs of Policronio were
not only aware of the existence of the Deed of Extra-Judicial Partition prior to June 30, 1995 but had, in fact, given Conrado
authority to sign in their behalf. They are now estopped from questioning its legality, and the Deed of Extra-Judicial Partition is
valid, binding, and enforceable against them.

In view of the foregoing, there is no longer a need to discuss the issue of ratification.

Preterition

The Heirs of Alfonso were of the position that the absence of the Heirs of Policronio in the partition or the lack of authority of
their representative results, at the very least, in their preterition and not in the invalidity of the entire deed of partition. Assuming
there was actual preterition, it did not render the Deed of Extra-Judicial Partition voidable. Citing Article 1104 of the Civil Code,
they aver that a partition made with preterition of any of the compulsory heirs shall not be rescinded, but the heirs shall be
proportionately obliged to pay the share of the person omitted. Thus, the Deed of Extra-Judicial Partition should not have been
annulled by the CA. Instead, it should have ordered the share of the heirs omitted to be given to them.

The Heirs of Alfonso also argued that all that remains to be adjudged is the right of the preterited heirs to represent their father,
Policronio, and be declared entitled to his share. They contend that remand to the RTC is no longer necessary as the issue is
purely legal and can be resolved by the provisions of the Civil Code for there is no dispute that each of Alfonso’s heirs received
their rightful share. Conrado, who received Policronio’s share, should then fully account for what he had received to his other co-
heirs and be directed to deliver their share in the inheritance.

These arguments cannot be given credence.

Their posited theory on preterition is no longer viable. It has already been determined that the Heirs of Policronio gave their
consent to the Deed of Extra-Judicial Partition and they have not been excluded from it. Nonetheless, even granting that the Heirs
of Policronio were denied their lawful participation in the partition, the argument of the Heirs of Alfonso would still fail.

Preterition under Article 854 of the Civil Code is as follows:

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

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

Preterition has been defined as the total omission of a compulsory heir from the inheritance.  It consists in the silence of the
1âwphi1

testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him
anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case.57
 Preterition is thus a concept of testamentary succession and requires a will. In the case at bench, there is no will involved.
Therefore, preterition cannot apply.

Remand Unnecessary

The Deed of Extra-Judicial Partition is in itself valid for complying with all the legal requisites, as found by the RTC, to wit:

A persual of the Deed of Extra-judicial Partition would reveal that all the heirs and children of Alfonso Ureta were represented
therein; that nobody was left out; that all of them received as much as the others as their shares; that it distributed all the
properties of Alfonso Ureta except a portion of parcel 29 containing an area of 14,000 square meters, more or less, which was
expressly reserved; that Alfonso Ureta, at the time of his death, left no debts; that the heirs of Policronio Ureta, Sr. were
represented by Conrado B. Ureta; all the parties signed the document, was witnessed and duly acknowledged before Notary
Public Adolfo M. Iligan of Kalibo, Aklan; that the document expressly stipulated that the heirs to whom some of the properties
were transferred before for taxation purposes or their children, expressly recognize and acknowledge as a fact that the properties
were transferred only for the purpose of effective administration and development convenience in the payment of taxes and,
therefore, all instruments conveying or effecting the transfer of said properties are null and void from the beginning (Exhs. 1-4, 7-
d).58

Considering that the Deed of Sale has been found void and the Deed of Extra-Judicial Partition valid, with the consent of all the
Heirs of Policronio duly given, there is no need to remand the case to the court of origin for partition. 1ªvvph!1

WHEREFORE, the petition in G.R. No. 165748 is DENIED. The petition in G.R. No. 165930 is GRANTED. The assailed April 20, 2004
Decision and October 14, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 71399, are hereby MODIFIED in this wise:

(1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is VALID, and

(2) The order to remand the case to the court of origin is hereby DELETED.
SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO*

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13,

Today is Saturday, July 27, 2019

Top of Form
 Bottom of Form

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23445             June 23, 1966

REMEDIOS NUGUID, petitioner and appellant, 

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate
and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario
Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors — who are compulsory heirs of the deceased in the direct
ascending line — were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on
the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the
estate of the deceased Rosario Nuguid" and dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of
inquiry is limited — to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions 
solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings — is not called upon to rule
on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared
that the will has been duly authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on the
issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation
will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of
time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question.3 After all, there exists a justiciable controversy
crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This
exacts from us a study of the disputed will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-
one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

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

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus —

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preteritionemployed in the law becomes a necessity. On this point Manresa
comments:
 La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole
como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de
los bienes, resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el
heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-
cut definition of the word annul:

To "annul" means to abrogate, to make void ... In reMorrow's Estate, 54 A. 342, 343, 204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's
remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to
abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away
with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil
Code.9 The one-sentence will here institutes petitioner as the sole, universal heir — nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died
intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se añade
limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en
cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y
que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los
forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que
comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los
herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814,
al determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of
petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal
heir — without any other testamentary disposition in the will — amounts to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up
by the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion
de que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en
todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus bienes
en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido
es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien
testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y
eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a
un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del
testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una
cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall
be valid insofar as they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as
such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will — void because of preterition —
would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir.
Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the
heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution,
by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15 From this,
petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the
distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in
turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be "involuntaria". 19Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will
rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there
are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the
same Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to
that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in
commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other,
runs thus: "Preteridos,adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage
should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This
theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of
institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would.
be absolutely meaningless and will never have any application at all. And the remaining provisions contained in
said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they
would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the
Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from
legacies and betterments, and a general from a special provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt
with as a thing separate and distinct from legacies or betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an institution of heirs cannot be taken as a legacy
. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered
.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

Footnotes
1Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil. 436, 440-441; Limjuco vs.
Ganara, 11 Phil. 393, 394-395; Montañano vs. Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105, 116;
 In re Estate of Johnson, 39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val, etc.,
L-18753, March 26, 1965.
2 Section 13, Rule 76 of the Rules of Court.
3 Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.
4 Betterments are eliminated in the present Civil Code. II Padilla, Civil Code Annotated, p. 1077.
5 VI Manresa, Commentarios al Codigo Civil Español, 7th Edition, (1951), p. 424.
6 Words & Phrases, Vol. 3A, Permanent Ed., p. 3.
7 Id., p. 4.
8 Black's Law Dictionary, 4th ed., p. 117.
9 Manresa, id., p. 426.
10 Manresa, id., pp. 431-432.
11 VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.
12 VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192-193.

Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline of Philippine Civil Law", 1956
ed., Vol. III, p. 8; citing Gil vs. Murciano, L-3362, March 1, 1951, likewise opined that "the right to make a
will is statutory, not a natural right, and must be subordinate to law and public policy".
13 Sanchez Roman, id., p. 1141.
14 Manresa, id., p. 434.
15 Petitioner's brief, p. 15.
16 Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.
17 Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the requisites of a valid disinheritance,
18

confirm the theory that disinheritance "must be express (not implied) (Art. 918 ; otherwise there is preterition".
19 Sanchez Roman, id., p. 1131.
20 Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.
21 III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.
22 Now one-half, Articles 888 and 889, Civil Code.
23 Manresa, id., p. 430.
24 Petitioner's brief, p. 13.
25 Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.
 Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion above, are now Arts. 907 and 918
of the present Civil Code.

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