3B [Wills] Digests
TESTATE ESTATE OF C. O. BOHANAN, deceased.
PHILIPPINE TRUST CO. v. MAGDALENA C.
BOHANAN, EDWARD C. BOHANAN, and MARY
LYDIA BOHANAN
January 30, 1960
G.R. No. L-12105 Ponente: J. Labrador
Related Article: Tickler:
Art. 10 CC Foreign National
Nevada
What law will prevail?
Doctrine of the Case
The old Civil Code, which is applicable to this case
because the testator died in 1944, expressly provides
that successional rights to personal property are to
be earned by the national law of the person whose
succession is in question.
As in accordance with Article 10 of the old Civil Code,
the validity of testamentary dispositions are to be
governed by the national law of the testator, and as it
has been decided and it is not disputed that the
national law of the testator is that of the State of
Nevada, already indicated above, which allows a
testator to dispose of all his property according to his
will, as in the case at bar, the order of the court
approving the project of partition made in accordance
with the testamentary provisions, must be, as it is
hereby affirmed.
Parties – Roles:
Testator – CO Bohanan
Oppositor – Magdalena Bohanan
Facts
C. O. Bohanan, a citizen the United States and of the
State of Nevada executed a last will and testament in
accordance with the laws of the state of Nevada on
April 23, 1944 in Manila. The testator and Magdalena
C. Bohanan were married on January 30, 1909. He
secured a divorce which was granted to him on May
20, 1922. Sometime in 1925, Magdalena C. Bohanan
married Carl Aaron and this marriage was subsisting at
the time of the death of the testator in 1944.
[Dante, John Marc R.]
On April 24, 1950, the Court of First Instance of Manila,
Hon. Rafael Amparo, presiding, admitted to probate
the last will and testament of C. O. Bohanan. The
Philippine Trust Company was named as the executor
of the will.
The executor filed a project of partition adjudicating
that:
(1) one-half of the residuary estate, to the Farmers and
Merchants National Bank of Los Angeles, California,
U.S.A. in trust only for the benefit of testator’s grandson
Edward George Bohanan, which consists of several
mining companies;
(2) the other half of the residuary estate to the testator’s
brother, F.L. Bohanan, and his sister, Mrs. M. B.
Galbraith, share and share alike. This consist in the
same amount of cash and of shares of mining stock
similar to those given to testator’s grandson;
(3) legacies of P6,000 each to his (testator) son,
Edward Gilbert Bohana, and his daughter, Mary Lydia
Bohanan, to be paid in three yearly installments;
(4) legacies to Clara Daen, in the amount of
P10,000.00; Katherine Woodward, P2,000; Beulah
Fox, P4,000; and Elizabeth Hastings, P2,000.
Claiming having been deprived of the legitime, the
respondents, the wife Magadalena C. Bohanan and
her two children questioned the validity of the
testamentary provisions disposing of the estate in the
manner that:
out of the total estate (after deducting administration
expenses) of P211,639.33 in cash, the testator gave
his grandson P90,819.67 and one-half of all shares
of stock of several mining companies and to his
brother and sister the same amount. To his children
he gave a legacy of only P6,000 each, or a total of
P12,000.
Issue/s
Whether or not Magdalena is entitled to a legitime?
(NO)
Whether or not the testator’s children entitled to a
legitime in accordance with the laws of the forum?
(NO)
 3B [Wills] Digests

Ruling of the SC: been offered at the hearing of the project of partition.

On the first issue, the Supreme Court ruled that The order of the court approving the project of partition
Magdalena is not entitled to the legitime. The laws of was affirmed.
Nevada, of which the deceased was a citizen, allow
him to dispose of all of his properties without requiring Disposition:
him to leave any portion of his estate to his wife.
Section 9905 of Nevada Compiled Laws of 1925 In accordance with the testamentary provisions,
provides: must be, as it is hereby affirmed, with costs against
appellants.
Every person over the age of eighteen years,
of sound mind, may, by last will, dispose of all
his or her estate, real and personal, the same
being chargeable with the payment of the
testator’s debts.

Moreover, in an order dated June 19, 1955 – the court

found that there existed no community property owned
by the decedent and his former wife at the time the
decree of divorce was issued. This order was already
final and executory and she had not appealed from that
decision.

On the second issue, the court also ruled in the

negative. In accordance with Par. 2, Art. 10, old Civil
Code, which is the same as par. 2 Art. 16, New Civil
Code legal and testamentary successions, in respect
to the order of succession as well as to the extent of
the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may
be the nature of the property and the country in which
it is found.

It is therefore the Law of Nevada which will govern the

disposition of the properties of the testator but this
foreign law must first be proved as our courts do not
take judicial notice of foreign laws. However, the laws
of Nevada were not introduced in evidence by the
executor’s at the hearing of the project of partition. It is
Magdalena C. Bohanan, upon her motion for
withdrawal of P20,000 as her share, who introduced in
evidence the foreign law, especially Section 9905,
Compiled Nevada Laws. Said laws presented by the
counsel for the executor was admitted by the Court.
Also the children of the testator, did not dispute the
above-quoted provision of the laws of the State of
Nevada.

Under these circumstances, the Court held that the

pertinent law of Nevada, especially Section 9905 of the
Compiled Nevada Laws of 1925, can be taken judicial
notice by the court, without proof of such law having

[Dante, John Marc R.]

 page 72 Deans Circle

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,

DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased,
Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente
N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September
14, 1949, approving among things the final accounts of the executor, directing the
executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen
Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the
residue of the property to be enjoyed during her lifetime, and in case of death without
issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will
was executed in Manila on March 5, 1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now
Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and
who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she
was baptized Christensen, is not in any way related to me, nor has she been at any time
adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00),
Philippine Currency the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank, and paid to her at
the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have accrued thereon, is exhausted..

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No.
665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed
at my death and which may have come to me from any source whatsoever, during her
lifetime: ....

It is in accordance with the above-quoted provisions that the executor in his final account
and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia
and proposed that the residue of the estate be transferred to his daughter, Maria Lucy
Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen
Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child,
she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child
of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it denies to Helen Christensen, one of two
acknowledged natural children, one-half of the estate in full ownership. In amplification
of the above grounds it was alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved, that the forum is the
Philippines and even if the case were decided in California, Section 946 of the California
Civil Code, which requires that the domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen Christensen having been declared an
acknowledged natural child of the decedent, she is deemed for all purposes legitimate
from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States
and of the State of California at the time of his death, the successional rights and intrinsic
validity of the provisions in his will are to be governed by the law of California, in
accordance with which a testator has the right to dispose of his property in the way he
desires, because the right of absolute dominion over his property is sacred and inviolable
(In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117
Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.

The most important assignments of error are as follows:

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE

SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF
EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST
SHARE IN THE INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO

RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND
CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER

INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE
INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION
OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE
GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF

DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE
LAWS.

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and
of the State of California at the time of his death. But there is also no question that at the
time of his death he was domiciled in the Philippines, as witness the following facts
admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City,
N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on
July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as
the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines
until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for
the following nine years until 1913, during which time he resided in, and was teaching
school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However,
in 1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own
country, and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of facts.
1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces
in the Philippines during World War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945. Appellees Collective Exhibits
"6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM",
"MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City
of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are
persuaded by the fact that he was born in New York, migrated to California and resided
there for nine years, and since he came to the Philippines in 1913 he returned to
California very rarely and only for short visits (perhaps to relatives), and considering that
he appears never to have owned or acquired a home or properties in that state, which
would indicate that he would ultimately abandon the Philippines and make home in the
State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California
when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay
in the Philippines, for the latter was a territory of the United States (not a state) until 1946
and the deceased appears to have considered himself as a citizen of California by the
fact that when he executed his will in 1951 he declared that he was a citizen of that State;
so that he appears never to have intended to abandon his California citizenship by
acquiring another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a
place of permanent abode. But domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has never been. And he may
reside in a place where he has no domicile. The man with two homes, between which he
divides his time, certainly resides in each one, while living in it. But if he went on business
which would require his presence for several weeks or months, he might properly be
said to have sufficient connection with the place to be called a resident. It is clear,
however, that, if he treated his settlement as continuing only for the particular business
in hand, not giving up his former "home," he could not be a domiciled New Yorker.
Acquisition of a domicile of choice requires the exercise of intention as well as physical
presence. "Residence simply requires bodily presence of an inhabitant in a given place,
while domicile requires bodily presence in that place and also an intention to make it
one's domicile." Residence, however, is a term used with many shades of meaning, from
the merest temporary presence to the most permanent abode, and it is not safe to insist
that any one use et the only proper one. (Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16
of the Civil Code of the Philippines, which is as follows:

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

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning
of the term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions in the
United States, each state of the Union having its own private law applicable to its citizens
only and in force only within the state. The "national law" indicated in Article 16 of the
Civil Code above quoted can not, therefore, possibly mean or apply to any general
American law. So it can refer to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal
property? The decision of the court below, sustains the contention of the executor-
appellee that under the California Probate Code, a testator may dispose of his property
by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal.
Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the
Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We
have checked it in the California Civil Code and it is there. Appellee, on the other hand,
relies on the case cited in the decision and testified to by a witness. (Only the case of
Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased
Christensen was a citizen of the State of California, the internal law thereof, which is that
given in the abovecited case, should govern the determination of the validity of the
testamentary provisions of Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the other hand, insists that
Article 946 should be applicable, and in accordance therewith and following the doctrine
of the renvoi, the question of the validity of the testamentary provision in question should
be referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:

The problem has been stated in this way: "When the Conflict of Laws rule of the forum
refers a jural matter to a foreign law for decision, is the reference to the purely internal
rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict
of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi,
that is, applied the Conflict of Laws rule of Illinois which referred the matter back to
Michigan law. But once having determined the the Conflict of Laws principle is the rule
looked to, it is difficult to see why the reference back should not have been to Michigan
Conflict of Laws. This would have resulted in the "endless chain of references" which
has so often been criticized be legal writers. The opponents of the renvoi would have
looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference
back. Yet there seems no compelling logical reason why the original reference should
be the internal law rather than to the Conflict of Laws rule. It is true that such a solution
avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid
this inextricabilis circulas by getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look
always to internal law as the rule of reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that
greater uniformity will result from adoption of their respective views. And still more
strange is the fact that the only way to achieve uniformity in this choice-of-law problem
is if in the dispute the two states whose laws form the legal basis of the litigation disagree
as to whether the renvoi should be accepted. If both reject, or both accept the doctrine,
the result of the litigation will vary with the choice of the forum. In the case stated above,
had the Michigan court rejected the renvoi, judgment would have been against the
woman; if the suit had been brought in the Illinois courts, and they too rejected the renvoi,
judgment would be for the woman. The same result would happen, though the courts
would switch with respect to which would hold liability, if both courts accepted the
renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce
case, is applied by the forum, but any further reference goes only to the internal law.
Thus, a person's title to land, recognized by the situs, will be recognized by every court;
and every divorce, valid by the domicile of the parties, will be valid everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable

property in Massachusetts, England, and France. The question arises as to how this
property is to be distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the
conflict of laws as to intestate succession to movables calls for an application of the law
of the deceased's last domicile. Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and decree a distribution
accordingly. An examination of French law, however, would show that if a French court
were called upon to determine how this property should be distributed, it would refer the
distribution to the national law of the deceased, thus applying the Massachusetts statute
of distributions. So on the surface of things the Massachusetts court has open to it
alternative course of action: (a) either to apply the French law is to intestate succession,
or (b) to resolve itself into a French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French court would do. If it accepts
the so-called renvoi doctrine, it will follow the latter course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of
the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the
matter back again to the law of the forum. This is renvoi in the narrower sense. The
German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol.
31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing
a particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it
has been considered by the courts in but a few instances, has been the subject of
frequent discussion by textwriters and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of the foreign law in toto would in
many cases result in returning the main controversy to be decided according to the law
of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoi is that the court of the forum, in determining the question before it,
must take into account the whole law of the other jurisdiction, but also its rules as to
conflict of laws, and then apply the law to the actual question which the rules of the other
jurisdiction prescribe. This may be the law of the forum. The doctrine of the renvoi has
generally been repudiated by the American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its
application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal,
Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted herein
below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.

xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign
laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad
as regards their personal statute, and desires that said personal statute shall be
determined by the law of the domicile, or even by the law of the place where the act in
question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one of
them is necessarily competent, which agree in attributing the determination of a question
to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his
domicile, he must first inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and if he finds that the
Belgian law would make the distribution in accordance with the law of nationality — that
is the English law — he must accept this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the
rule applied in In re Kaufman, Supra, its internal law. If the law on succession and the
conflict of laws rules of California are to be enforced jointly, each in its own intended and
appropriate sphere, the principle cited In re Kaufman should apply to citizens living in
the State, but Article 946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting to the law of the
domicile in the determination of matters with foreign element involved is in accord with
the general principle of American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will
directing the manner of distribution of the property, the law of the state where he was
domiciled at the time of his death will be looked to in deciding legal questions about the
will, almost as completely as the law of situs is consulted in questions about the devise
of land. It is logical that, since the domiciliary rules control devolution of the personal
estate in case of intestate succession, the same rules should determine the validity of an
attempted testamentary dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary state. The rules of the
domicile are recognized as controlling by the Conflict of Laws rules at the situs property,
and the reason for the recognition as in the case of intestate succession, is the general
convenience of the doctrine. The New York court has said on the point: 'The general
principle that a dispostiton of a personal property, valid at the domicile of the owner, is
valid anywhere, is one of the universal application. It had its origin in that international
comity which was one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little notice of boundary
lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as
the national law is the internal law of California. But as above explained the laws of
California have prescribed two sets of laws for its citizens, one for residents therein and
another for those domiciled in other jurisdictions. Reason demands that We should
enforce the California internal law prescribed for its citizens residing therein, and enforce
the conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of
California as in comity we are bound to go, as so declared in Article 16 of our Civil Code,
then we must enforce the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein, and its
conflict-of-laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the
place where the property is situated" in Sec. 946 of the California Civil Code refers to
Article 16 of the Civil Code of the Philippines and that the law to the contrary in the
Philippines is the provision in said Article 16 that the national law of the deceased should
govern. This contention can not be sustained. As explained in the various authorities
cited above the national law mentioned in Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict of
laws rule in California, Article 946, Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of his domicile, the Philippines in the
case at bar. The court of the domicile can not and should not refer the case back to
California; such action would leave the issue incapable of determination because the
case will then be like a football, tossed back and forth between the two states, between
the country of which the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of laws rule of the state
of the decedent, if the question has to be decided, especially as the application of the
internal law of California provides no legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil.
105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil.
130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision
can not possibly apply in the case at bar, for two important reasons, i.e., the subject in
each case does not appear to be a citizen of a state in the United States but with domicile
in the Philippines, and it does not appear in each case that there exists in the state of
which the subject is a citizen, a law similar to or identical with Art. 946 of the California
Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of

California, is the Philippines, the validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be governed by the Philippine Law,
the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law
of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to
the lower court with instructions that the partition be made as the Philippine law on
succession provides. Judgment reversed, with costs against appellees.

In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee, vs. ANTONIO
ABELLA ET AL.,
Date: June 12, 1922
G.R. No.: 17857 Ponente: Villamor, J.
Related Article: Tickler:
One witness was hostile,
paging is in Arabic numerals
instead of letters.
Doctrine of the Case
The general rule is that, where opposition is made to
the probate of a will, the attesting witnesses must be
produced. But there are exceptions to this rule, for
instance, when a witness is dead, or cannot be served
with process of the court, or his reputation for truth has
been questioned or he appears hostile to the cause of
the proponent. In such cases, the will may be admitted
to probate without the testimony of said witness, if,
upon the other proofs adduced in the case, the court is
satisfied that the will has been duly executed.
Parties – Roles
Dona Josefa Abella – testatrix
Pedro Unson – executor
Antonio Abella – oppositor
Witnesses:
Eugenio Zalamea
Gonzalo Abaya
Pedro De Jesus
Facts
Dona Josefa executed her last will and testament when
she was 60 yo and single. Execution was in the
presence of 3 witnesses and with an attached
inventory of her properties. She died in 1921.
Consequently, executor appointed in the will, Pedro
Unson, filed an application for the probate of the will.
Abella opposed the application of Unson alleging that:
1. The will was not paged correlatively in letters
(it was in Arabic numbers);
2. There was no attestation clause; and
3. The will was not signed by Dona Josefa and
the 3 witnesses in the presence of each other.
[SOLIS, ASTRID]
3B [WILLS] Digests
RTC Ruling:
Overruled the opposition and ordered the probate of
the will.
Abella appealed and assigned 3 errors for the reversal
of the RTC ruling.
1) Abella tends to impeach the credibility of Zalamea.
Abella takes Zalamea’s testimony in connection
with the dismissal of a criminal case against his
nephew in whose success he was interested and
infer from this fact the partiality of his testimony;
2) One of the pages of the will was not signed by
Dona Josefa and the witnesses accdg to a certain
Aurelio Palileo;
3) Paging in the attached inventory is made in Arabic
numerals and not in letters; and
4) One of the witnesses to the will was not produced.
On the other hand, Unson argued that they had to omit
the testimony of Pedro De Jesus because there were
reasonable grounds to believe that he was openly
hostile to Unson since he had been in frequent
communication with Abella and his lawyer. Also, he
refused to hold any conference with the lawyers of
Unson.
Issue/s
Whether or not the will was executed with all the
solemnities required by the law
Ruling
The Court ruled in the affirmative. As to the
credibility of Zalamea, the Court deemed the allegation
of Abella of little importance to impeach his credibility
because his testimony was corroborated by Gonzalo
Abaya and Luis Abaya (lawyer who prepared the will).
This is sufficient to conclude that the allegation of
Abella with regard to the credibility of Eugenio is
groundless.
With regard to the second error alleged by Abella, the
Court stated that Zalamea, Abaya, and De Jesus
clearly testified that they signed each and every page
of the will and of the inventory in the presence of each
other and Dona Josefa. Palileo’s testimony cannot
 3B [WILLS] Digests

prevail over Abaya and Zalamea, the attesting

witnesses.

Further, in view of the paging in the inventory, the Court

held that this way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch as it
indicates the correlation of the pages and serves to
prevent the abstraction of any of them.

It might be said that the object of the law in requiring

that the paging be made in letters is to make
falsification more difficult, but it should be noted that
since all the pages of the testament are signed at the
margin by the Josefa and the witnesses, the difficulty
of forging the signatures in either case remains the
same. In other words the more or less degree of facility
to imitate the writing of the letters A, B, C, etc., does
not make for the easiness to forge the signatures. And
as in the present case there exists the guaranty of the
authenticity of the testament, consisting in the
signatures on the left margins of the testament and the
paging thereof as declared in the attestation clause

Lastly, the Court explained that there are exceptions to

the general rule that where opposition is made to the
probate of a will, all the attesting witnesses must be
produced. These are the exceptions:

a) When a witness is dead;

b) Witness cannot be served with process of the
court;
c) His reputation for truth has been questioned;
or
d) He appears to be hostile to the cause of
the proponent.

In such cases, the will may be admitted to probate

without the testimony of said witness, if, upon the other
proofs adduced in the case, the court is satisfied that
the will has been duly executed. Therefore, the non-
production Pedro De Jesus does not render the will
void and must be allowed to probate.

[SOLIS, ASTRID]

Testate Estate of the Late Adriana Maloto, Aldina
Maloto Casiano, Constancio Maloto, Purification
Miraflor, Roman Catholic Church of Molo, and
Asilo De Molo vs. CA, Panfilo Maloto, and Felino
Maloto
Date: February 29, 1988
G.R. No.: 76464 Ponente: J. Sarmiento
Related Article: Tickler: The document or
830 papers, which were thought to
be the testator’s will, was
burned by Adriana's (testator)
maid
Doctrine of the Case
It is clear that the physical act of destruction of a will,
like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by
the testator himself. It may be performed by another
person but under the express direction and in
the presence of the testator. It goes without saying
that the document destroyed must be the will itself.
Parties – Roles
Adriana Maloto – testator
Petitioners: Aldina Maloto-Casiano and Constancio,
Maloto
Respondents: Panfilo Maloto and Felino Maloto
Petitioners and respondents are nieces and nephews
of the testator.
Facts
On October 20, 1963, Adriana Maloto died leaving as
heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the
private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. However, while the
case was still in progress, the parties — Aldina,
Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's
estate. The agreement provided for the division of the
estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court
did on March 21, 1964.
[Uy, Patrizia]
3B [WILLS AND SUCCESSION] Digests
Three years later, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, discovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting
to be the last will and testament of Adriana. Atty. Palma
claimed to have found the testament, the original copy,
while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The
document was then submitted to the office of the clerk
of the Court of First Instance of Iloilo. While Panfilo and
Felino are still named as heirs in the said will, Aldina
and Constancio are bequeathed much bigger and
more valuable shares in the estate of Adriana than
what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The
will likewise gives devises and legacies to other
parties, among them being the petitioners Asilo de
Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
RTC Ruling: The Malotos then presented the
extrajudicial settlement agreement to the trial court for
approval which the court did on March 21, 1964.
CA Ruling: The appellate court, while finding as
inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp
of Adriana, Guadalupe Maloto Vda. de Coral, upon
instructions of the testatrix, was indeed the will,
contradicted itself and found that the will had been
revoked. The respondent court stated that the
presence of animus revocandi in the destruction of the
will had, nevertheless, been sufficiently proven. The
appellate court based its finding on the facts that the
document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of
Atty. Hervas to retrieve a copy of the will left in the
latter's possession, and, her seeking the services of
Atty. Palma in order to have a new will drawn up.
Issue/s:
• Whether or not the will was revoked by
Adriana.
Ruling
No. The provisions of the new Civil Code pertinent to
the issue can be found in Article 830.
Art. 830. No will shall be revoked
except in the following cases:
(1) By implication of law; or

(2) By some will, codicil, or other
writing executed as provided in case
of wills: or
(3) By burning, tearing, cancelling,
or obliterating the will with the
intention of revoking it, by the
testator himself, or by some other
person in his presence, and by his
express direction. If burned, torn
cancelled, or obliterated by some
other person, without the express
direction of the testator, the will may
still be established, and the estate
distributed in accordance therewith,
if its contents, and due execution,
and the fact of its unauthorized
destruction, cancellation, or
obliteration are established
according to the Rules of Court.
It is clear that the physical act of destruction of a will,
like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by
the testator himself. It may be performed by another
person but under the express direction and in
the presence of the testator. It goes without saying
that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to
revoke, may be conceded, for that is a state of mind,
yet that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by
another person in his presence and under his express
direction.
Nothing in the case at bar shows compliance with the
said requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express
direction of Adriana. And then, the burning was not in
her presence. Both witnesses, Guadalupe and Eladio,
were one in stating that they were the only ones
present at the place where the stove (presumably in
the kitchen) was located in which the papers proffered
as a will were burned. The respondent appellate court
in assessing the evidence presented by the private
[Uy, Patrizia]
3B [WILLS AND SUCCESSION] Digests
respondents as oppositors in the trial court, concluded
that the testimony of the two witnesses who testified in
favor of the will's revocation appear "inconclusive."
Such is true, as it appears nowhere in the records that
the two witnesses, Guadalupe Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed
Adriana's will. Guadalupe, believed that the papers she
destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on
this point is double hearsay.
Lastly, the private respondents point out that
revocation could be inferred from the fact that "(a)
major and substantial bulk of the properties mentioned
in the will had been disposed of: while an insignificant
portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of
the will on January 3,1940." Suffice it to state here that
as these additional matters raised by the private
respondents are extraneous to this special proceeding;
they could only be appropriately taken up after the will
has been duly probated and a certificate of its
allowance issued.
Disposition: WHEREFORE, judgment is hereby
rendered REVERSING and SETTING ASIDE the
Decision dated June 7, 1985 and the Resolution dated
October 22, 1986, of the respondent Court of Appeals,
and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the
private respondents.
 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

IN RE: GREGORIO TOLENTINO, ADELAIDA
TOLENTINO v. NATALIA FRANCISCO, ET AL.
December 19, 1932
G.R. No.: L-35993 Ponente: Street, J.
Related Article: Tickler: New will, murder
Art. 814, NCC
Doctrine of the Case
When a will is contested it is the duty of the proponent
to call all of the attesting witnesses, if available but the
validity of the will in no wise depends upon the united
support of the will by all of those witnesses. A will may
be admitted to probate notwithstanding the fact that
one or more of the subscribing witnesses do not unite
with the other, or others, in proving all the facts upon
which the validity of the will rests. It is sufficient if the
court is satisfied from all the proof that the will was
executed and attested in the manner required by law.
Parties – Roles
Decedent/Testator: Gregorio Tolentino
Proponent: Adelaida Tolentino de Concepcion
Oppositors: Ciriaco, Natalia, and Gervasia Francisco
Witnesses: Repide, Monzon, Sunico
Witnesses to be substituted: Syyap, de Dios,
Legarda
Special co-administrator: Eugene de Mitkiewicz
Facts
N.B.: The Court discussed the facts in detail. There
was an attempt to shorten the narration of facts but for
the sake that the case will be better understood, almost
all of the facts originally in the case were retained. The
salient points are underlined. Apologies for this.
This petition was filed in the Court of First Instance of
Manila by Adelaida Tolentino de Concepcion, for the
purpose of procuring probate of the will of Gregorio
Tolentino, deceased, sixty-six years of age at the time
of his death, who died at the hand of an assassin, in
his home, No. 2541 Lico Street, in the District of Santa
Cruz, Manila.
In the inception of the proceedings Eugene de
Mitkiewicz was appointed special co-administrator, and
he joined as co-plaintiff in the petition. Opposition was
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3B WILLS Digests
made to the probate of the will by Ciriaco Francisco,
Natalia Francisco, and Gervasia Francisco, all cousins
of the Gregorio and residents of the City of Manila.
During the more vigorous years of Gregorio’s life, he
had been married to Benita Francisco, but she
predeceased him years ago. By their industry and
frugality, the two had accumulated a very considerable
estate which does not appear to have suffered any
material diminution in the years of Tolentino's
widowhood.
The pair had no children so Gregorio gathered in his
home some of his wife's kin; and by him various
younger members of the connection were supported
and educated. At one time Gregorio contemplated
leaving his property mainly to these kin of his wife, of
the surname Francisco; and for several years prior to
his death, he had kept a will indicating this desire.
However, on October 1930, strained relations,
resulting from grave disagreements, developed
between Tolentino and the Francisco relations and he
determined to make a new will in which, apart from
certain legacies in favor of a few individuals, the bulk
of his estate, worth probably about P150,000, should
be given to Adelaida Tolentino de Concepcion, as his
universal heir.
To this end, Gregorio went to the office of Eduardo
Gutierrez Repide, an attorney, and informed him that
he wanted to make a new will and desired Repide to
draft it for him. Preliminary inquiries were made. On the
second day thereafter, as instructed, Gregorio again
appeared in Repide's office with the prior will; and the
attorney proceeded to reduce the new will to proper
form. As the instrument was taking shape, Gregorio
stated that he wanted the will to be signed in Repide's
office, with Repide himself as one of the attesting
witnesses. For the other two witnesses Gregorio
requested that two attorneys attached to the office,
namely, Leoncio B. Monzon and Ramon L. Sunico,
should serve. For this reason, in the draft of the will, as
it at first stood, the names of the three above
mentioned were inserted as the names of the three
attesting witnesses.
When the instrument had been reduced to proper form,
it was placed in the hands of Gregorio, the testator, in
order that he might take it home to reflect over its
provisions and consider whether it conformed in all
respects to his wishes. On the morning of October 21,
he again appeared in Repide's office and returned to
him the draft of the will with certain corrections.

Among the changes thus made was the suppression of
the names of Monzon, Sunico, and Repide as attesting
witnesses, these names being substituted by the
names of Jose Syyap, Agustin Vergel de Dios, and
Vicente Legarda. The explanation given by Gregorio
for desiring this change was that he had met Jose
Syyap on the Escolta, the day before. Syyap had been
the draftsman of the former will of Gregorio, and in this
same will, the name of Syyap appeared as one of the
attesting witnesses, the other two being Vicente
Legarda and Vergel de Dios. When, therefore, Syyap
learned that a new will was being drawn up without his
intervention, he showed profound disappointment,
saying to Gregorio that he considered it a gross offense
that he, Legarda, and Vergel de Dios should be
eliminated as witnesses to the new will. Upon this
manifestation of feeling by Syyap, Gregorio requested
Repide to change the names of the attesting
witnesses. After this point had been settled, Gregorio
stated that he would request Syyap, Legarda, and
Vergel de Dios to appear at the office of Repide for the
purpose of signing the will. To this end Gregorio went
away but returned later saying that he had spoken to
Syyap about it and that the latter strenuously objected,
observing that the will should be signed at a chop-suey
restaurant (panciteria). Gregorio further stated to his
attorney in this conversation that he had arranged with
Syyap and the other two intending witnesses to meet
at five o'clock in the afternoon of the next day, for the
purpose of executing the will.
Repide made the desired changes in the will; and just
before twelve o'clock noon of the next day Tolentino
returned to Repide's office and received from him the
criminal document with a carbon copy thereof. Repide
advised Gregorio that the copy should be executed
with the same formality as the original in order that
Gregorio’s intention should not be frustrated by the
possible loss or destruction of the original.
It is a custom in the office of Repide not to number the
consecutive pages of a will, on the typewriting
machine, the duty of numbering the pages being left to
the testator himself. This precaution appears to have
been born of experience, and has been adopted by
Repide to prevent the possible destruction of a will by
the mere erasure of the figures or letters indicating the
pagination - a disaster which, in Repide's experience,
had occurred in at least one case. Accordingly, upon
delivering the completed will and carbon copy to
Gregorio, Repide took particular pains to instruct the
testator to write the consecutive paging of both original
and duplicate before signing the instrument.
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3B WILLS Digests
At his interview, Gregorio suggested to Repide that the
latter should also go to the place where the will was to
be executed, so that he might be present at the
formality. The attorney replied that it was impossible for
him to do so as he had another engagement for the
hour indicated, which would prevent his attendance.
At about 4:30 p.m. on the same day, Tolentino started
in his car to pick up Syyap and Vergel de Dios at their
respective homes on. He then caused his chauffeur to
drive to La Previsora Filipina, on Rizal Avenue, where
Vicente Legarda was to be found. Arriving at this place,
the three entered the office of Legarda, who was
manager of the establishment. Gregorio then
suggested that the three should go as his guests to a
panciteria, where they could take refreshments and the
will could be executed. Legarda replied that he must
decline the invitation for he had an engagement to go
to the Cosmos Club the same afternoon. Upon this,
Gregorio asked Legarda to permit the will to be signed
in his office, and to this request Legarda acceded.
Gregorio thereupon drew two documents from his
pocket saving that it was his last will and testament,
done in duplicate, and he proceeded to read the
original to the witnesses. After this had been
completed, Legarda himself took the will in hand and
read it himself. He then returned it to Gregorio, who
thereupon proceeded, with pen and ink, to number the
pages of the will thus, "Pagina Primera", "Pagina
Segunda", etc. He then paged the duplicate copy of the
will in the same way. He next proceeded to sign the
original will and each of its pages by writing his name
"G. Tolentino" in the proper places. Following this,
each of the three witnesses signed their own
respective names at the end of the will, at the end of
the attesting clause, and in the left margin of each page
of the instrument. During this ceremony all of the
persons concerned in the act of attestation were
present together, and all fully advertent to the
solemnity that engaged their attention.
After the original of the will had been executed in the
manner just stated, Gregorio expressed his desire that
the duplicate should be executed in the same manner.
To this Syyap objected, on the ground that it was
unnecessary; and in this view he was supported by
Vergel de Dios, with the result that the wishes of
Gregorio could not be carried out. As the party was
about to break up Gregorio used these words: "For
God's sake, as a favor, I request you not to let any one
know the contents of this will."

Gregorio then proceeded to the law office of Repide,
arriving about 6:15 p. m. After preliminary explanations
had been made, Gregorio requested Repide to keep
the will overnight in his safe, as it was already too late
to place it in the compartment which Gregorio was then
renting in the Oriental Safe Deposit, in the Kneedler
Building. In this connection Gregorio stated that he did
not wish to take the will to his home, as he knew that
his relatives were watching him and would take
advantage of any carelessness on his part to pry into
his papers. Also, in this conversation Gregorio
informed Repide of the refusal of Syyap to execute the
duplicate of the will.
The original of the will had been deposited in Repide's
safe. Two days later, Gregorio returned and received
the will. With the instrument thus in his possession he
proceeded at once to the Oriental Safe Deposit and
there left the instrument in his private compartment,
No. 333, in which place it remained until withdrawn
some two weeks later by order of the court.
On the morning of November 9, 1930, Gregorio
Tolentino was found dead in his bed.
CFI Manila Ruling:
The trial court overruled the opposition, declared the
will to have been properly executed, and allowed the
probate thereof.
From this order the three opponents appealed.
Issue/s
Whether or not the will can be admitted to probate
(YES)
Ruling
The peculiarity of this case is that, upon the trial of this
proceeding for the probate of the will of the decedent,
two of the attesting witnesses, Jose Syyap and Vergel
de Dios, repudiated their participation in the execution
of the will at the time and place stated; and while
admitting the genuineness of their signatures to the
will, pretended that they had severally signed the
instrument, at the request of the testator, at different
places.
Thus Syyap, testifying as a witness, claimed that the
testator brought the will to Syyap's house on the
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3B WILLS Digests
afternoon of October 21 - a time, be it remembered,
when the will had not yet left the hands of the draftsman
- and upon learning that Syyap could not be present at
the time and place then being arranged for the
execution of the will, he requested Syyap, as a mere
matter of complaisance, to sign the will then, which
Syyap did.
Vergel de Dios has another story to tell of isolated
action, claiming that he signed the will in the evening
of October 22 at the Hospital of San Juan de Dios in
Intramuros.
The Court is unable to give any credence to the
testimony of these two witnesses on this point, the
same being an evident fabrication designed for the
purpose of defeating the will.
In the first place, the affirmative proof showing that the
will was properly executed is adequate, consistent, and
convincing, consisting of the testimony of the third
attesting witness, Vicente Legarda, corroborated by
Miguel Legarda and Urbana Rivera, two disinterested
individuals, employees of La Previsora Filipina, who
were present in Legarda's office when the will was
executed and who lent a discerning attention to what
was being done.
In the second place, each of the seven signatures
affixed to his will by Syyap appear to the natural eye to
have been made by using the same pen and ink that
was used by Legarda in signing the will. The same is
also probably true of the seven signatures made by
Vergel de Dios. This could hardly have happened if the
signatures of Syyap and Vergel de Dios had been
affixed, as they now pretend, at different times and
places.
In the third place, Both Syyap and Vergel de Dios are
impeached by proof of contradictory statements made
by them on different occasions prior to their
appearance as witnesses in this case. In this
connection the Court noted that, after the murder of
Gregorio, and while the police authorities were
investigating his death, Nemesio Alferez, a detective,
sent for Syyap and questioned him concerning his
relations with the deceased. Upon this occasion Syyap
stated that Gregorio had lately made a will, that it had
been executed at the office of La Previsora Filipina
under the circumstances already stated, and that he
himself had served as one of the attesting witnesses.
With respect to Vergel de Dios, the Court noted: On the
day that Gregorio was buried, Ramon Llorente, a
member of the city police force, was sent out to the
 3B WILLS Digests

cemetery in order that he might be present and observe

the demeanor on that occasion of such Gregorio's kin
as might be present. Llorente arrived before the funeral
cortege, having been taken out to the cemetery by
Repide. While the two were waiting at the cemetery,
Llorente noted the presence of Vergel de Dios, he
requested the policeman to introduce him. In the
conversation that ensued Vergel de Dios stated with
considerable detail that Gregorio had made a will just
before his death, that it was executed at La Previsora
Filipina, and that he was one of the witnesses who
attested the instrument at that time and place.

Again, on a certain occasion subsequent to the death

of Gregorio, Juan Concepcion the husband of Adelaida
Tolentino, accompanied by Genoveva de Mendoza,
called upon Vergel de Dios, and in the conversation
that resulted Vergel de Dios told them that the will was
properly executed, that he was one of the attesting
witnesses, and that it had been signed by all of them in
the office of La Previsora Filipina.

These circumstances and other incidents revealed in

the proof leave no room for doubt in our mind that
Syyap and Vergel de Dios have entered into a
conspiracy between themselves, and in concert with
the opponents, to defeat the will of Gregorio although
they are well aware that said will was in all respects
properly executed; and the trial court, committed no
error in admitting the will to probate.

When a will is contested it is the duty of the proponent

to call all of the attesting witnesses, if available but the
validity of the will in no wise depends upon the united
support of the will by all of those witnesses.

A will may be admitted to probate notwithstanding the

fact that one or more of the subscribing witnesses do
not unite with the other, or others, in proving all the
facts upon which the validity of the will rests.
(Fernandez vs. Tantoco, 49 Phil., 380.)

It is sufficient if the court is satisfied from all the proof

that the will was executed and attested in the manner
required by law.

Disposition:

The order appealed from will therefore be affirmed,

with costs against the appellants. So ordered.

Cellen Jardiel

ANTILANO G. MERCADO v. ALFONSO SANTOS,
Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL.,
September 22, 1938
G.R. No.: 45629 Ponente: Laurel, J.
Related Article: Tickler: Conclusive
Arts. 306, 333,625. Presumption; Conclusiveness
of the due execution of a
probated will
Doctrine of the Case
“The probate of a will by the probate court having
jurisdiction thereof, upon the due notice, is conclusive
as to its due execution against the whole world.”
Sec. 625 provides, as re: conclusiveness of the due
execution of a probate will: “… the allowance by
the court of a will of real and personal estate shall
be conclusive as to its due execution.”
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.
Parties – Roles
Petitioner- Antilano Mercado (husband of the
deceased)
Respondents- Rosario Basa De Leon et. al
(intervenor)
Deceased- Ines Basa (wife of Mercado)
Facts
This is a petition for the probate of the will of his wife
Ines Basa filed by herein petitioner Antilano Mercado.
Without any opposition, and upon the testimony of
Benigno F. Gabino, one of the attesting witnesses, the
probate court, on June 27, 1931, admitted the will to
probate.
Almost three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the
proceedings, alleging lack of jurisdiction of the court to
probate the will and to close the proceedings. Because
filed ex parte, the motion was denied. The same motion
was filed a second time, but with notice to the adverse
party. The motion was nevertheless denied by the
Bartolo, Pauline
3B [WILLS] Digests
probate court on May 24, 1934. On appeal, the order
of denial was affirmed on July 26, 1935.
It appears that in 1932, the Petitioner and the
intervenor Rosario Basa attempted to reach a
settlement as to the disposition of the deceased’s
property, under threats or pressure on the part of the
intervenor to file a criminal complaint for forgery
against the petitioner. Failing such compromise, the
intervenor filed a criminal complaint for forgery against
the petitioner in 1932 before the Justice of Peace of
San Fernando, Pampanga. Petitioner was arrested but
he put up a bond at P4,000. The complaint was
dismissed at the instance of the complainant herself.
Parties again attempted to settle and again failing to
reach an agreement, intervenor Basa filed the same
criminal complaint in 1933, this time at the Justice of
Peace of Mexico, Pampanga. Again the petitioner was
arrested, put up a bond, and again the complaint was
dismissed at the instance of the complainant herself,
averring that she had to withdraw the case because of
the “failing health” of the petitioner, who had
tuberculosis. The petitioner was charged a third and
fourth time for the same criminal offense. In 1934, after
the filing of the fourth complaint for forgery, however,
the provincial fiscal investigated the case and filed the
Information against the petitioner for forgery.
CFI Ruling:
When the Court of First Instance ordered that the case
be tried on the merits. The petitioner interposed a
demurrer on November 25, 1935, on the ground that
the will alleged to have been forged had already been
probated. This demurrer was overruled on December
24, 1935, whereupon an exception was taken and a
motion for reconsideration and notice of appeal were
filed. The motion for reconsideration and the proposed
appeal were denied on January 14, 1936. The case
proceeded to trial, and forthwith petitioner moved to
dismiss the case claiming again that the will alleged to
have been forged had already been probated and,
further, that the order probating the will is conclusive as
to the authenticity and due execution thereof.
CA Ruling:
The motion was overruled and the petitioner filed with
the Court of Appeals a petition for certiorari with
preliminary injunction to enjoin the trial court from
further proceedings in the matter. The injunction was
issued and thereafter, on June 19, 1937, the Court of
Appeals denied the petition for certiorari, and dissolved
the writ of preliminary injunction.
 3B [WILLS] Digests

Hence the present petition. and it cannot be impugned on any of the grounds
authorized by law, except that of fraud, in any separate
Issue/s or independent action or proceeding.”
Whether the probate of the will of his deceased wife is “The probate of a will by the probate court having
a bar to his criminal prosecution for the alleged forgery jurisdiction thereof is usually considered as conclusive
of the said will; (YES) as to its due execution and validity, and is also
conclusive that the testator was of sound and disposing
mind at the time when he executed the will, and was
Ruling
not acting under duress, menace, fraud, or undue
The Court ruled in the Affirmative, the law creates a
influence, and that the will is genuine and not a
conclusive presumption as to the due execution of the
forgery.”
will after it is admitted into probate. Supported by the
provision of the Code of Civil procedure Sec. 306, and
As our law on wills, particularly section 625 of our Code
sec. 625 wherein it states that;
of Civil Procedure, was taken almost bodily from the
“ . Section 306 of our Code of Civil Procedure provides
Statutes of Vermont, the decisions of the Supreme
as to the effect of judgments.
Court of that State relative to the effect of the probate
of a will are of persuasive authority in this jurisdiction.
SEC. 306. Effect of judgment. — The effect of a
judgment or final order in an action or special
As held by the Supreme Court of Vermont "The probate
proceeding before a court or judge of the Philippine
of a will by the probate court having jurisdiction thereof,
Islands or of the United States, or of any State or
upon the due notice, is conclusive as to its due
Territory of the United States, having jurisdiction to
execution against the whole world. The probate of a will
pronounce the judgment or order, may be as follows.
in this jurisdiction is a proceeding in rem. The provision
of notice by Publication as a prerequisite to the
1. In case of a judgment or order against a
allowance of a will is constructive notice to the whole
specific thing, or in respect to the probate of a
world, and when probate is granted, the judgment of
will, or the administration of the estate of a
the court is binding upon everybody, even against the
deceased person, or in respect to the
State.
personal, political, or legal condition or
relation of a particular person, the judgment
The aggrieved party may file an application for relief
or order is conclusive upon the title of the
with the proper court within a reasonable time, but in
thing, the will or administration, or the
no case exceeding six months after said court has
condition or relation of the person Provided,
rendered the judgment of probate, on the ground of
That the probate of a will or granting of letters
mistake, inadvertence, surprise or excusable neglect.
of administration shall only be prima facie
An appeal lies to review the action of a court of first
evidence of the death of the testator or
instance when that court refuses to grant relief. After a
intestate.”
judgment allowing a will to be probated has become
final and unappealable, and after the period fixed by
“SEC. 625. Allowance Necessary, and Conclusive
section 113 of the Code of Civil Procedure has expired,
as to Execution. — No will shall pass either the real
the law as an expression of the legislative wisdom goes
or personal estate, unless it is proved and allowed in
no further and the case ends there.
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 Disposition:
execution.” Mercado is entitled to have the criminal proceedings
against him quashed; CA judgment is reversed, without
In view of the provisions of Secs. 306, 333 and 625 of pronouncement as to costs.
the Code of Civil Procedure, a criminal action will not
lie against the forger of a will which had been duly
admitted to probate by a court of competent
jurisdiction.

In Manahan vs. Manahan, “The decree of probate is

conclusive with respect to the due execution thereof

Bartolo, Pauline
 3B Wills Digests

TESTATE ESTATE OF MARIA MANUEL Thereafter, Maria Manuel Vda. De Biascan,

Vda. DE BIASCAN vs. ROSALINA C. Florencio’s legal wife filed a motion for
BIASCAN intervention and opposed Rosalina’s
Date: December 11, 2000 appointment as administratrix, petitioning
that she be declared as the administratrix of
G.R. Ponente: J.
the estate of her deceased husband.
No.: 138731 Gonzaga-Reyes

Related Tickler: CFI Ruling:

Article: Maria opposed the CFI Manila granted Maria’s intervention but
Sec. 1 (b), Rule declaration of Rosalina on April 2, 1981, the said court issued an
109 of the as administratrix but CFI order favoring Rosalina, the motion to set
Rules of Court ruled in favor of aside the order appointing Rosalina as
Rosalina. Appeal was testatrix was denied. Maria, through her
filed out of time. counsel received a copy of the order on
April 9, 1981.

Doctrine of the Case On June 6, 1981, or 58 days after the

It is well-settled that judgment or orders
become final and executory by operation
of law and not by judicial declaration.
Thus, finality of a judgment becomes a
fact upon the lapse of the reglementary
period of appeal if no appeal is perfected
or motion for reconsideration or new trial
is filed. The trial court need not even
pronounce the finality of the order as the
same becomes final by operation of law.
Parties – Roles
Rosalina Biascan – appointed as regular
administratrix of the intestate estate of
Florencio Biascan and Timotea Zulueta
receipt of the April 2, 1981 Order, Maria filed
her motion for reconsideration which private
respondent opposed. Unfortunately, the
Manila City Hall’s 4th Floor was completely
gutted by fire and the records of the
settlement proceedings were lost in the said
fire. Maria then filed for reconstitution of the
said records.
Due to the delay caused by the fire, RTC
only made an order denying Maria’s motion
for reconsideration on April 30, 1985.
Unfortunately, sometime thereafter, Maria
died and her testate estate also became
subject of the settlement proceedings.

Maria Manuel Vda. De Biascan – legal wife
of Florencio
Facts
Rosalina Biascan filed for her appointment
as administratrix of the intestate estate of
Florencio Biascan and Timoteo Zulueta
before the then CFI Manila. The CFI
appointed Rosalina as regular administratix
of the estates on August 13, 1975.
A notice of appeal dated April 22, 1996 was
filed by petitioner but such was denied by
the trial court because it was filed out of
time.
CA Ruling:
Not satisfied, petitioner filed a petition for
certiorari with prayer for mandatory
injunction with the CA. However, the CA
denied the petition.

Faith Yancha

Issue/s
1. Whether or not the questioned
decision may be subject of an
appeal. (YES)
2. Whether or not the petitioner may
appeal the decision. (NO)
Ruling:
1. The SC held in the affirmative, the
questioned decision may be subject of
an appeal.
The ruling of the trial court denying
petitioner’s motion to set aside the order
appointing private respondent as the regular
administratrix of the estate of Florencio
Bisacan is likewise a proper subject of an
appeal. We have previously held that an
order of the trial court appointing a regular
administrator of a deceased person’s estate
is a final determination of the rights of the
parties thereunder, and is thus, appealable.
This is in contrast with an order appointing a
special administrator who is appointed only
for a limited time and for a specific purpose.
Because of the temporary character and
special character of this appointment, the
Rules deem it not advisable for any party to
appeal from said temporary appointment.
Considering however that private
respondent has aleready been appointed as
regular administratrix of the estate of
Florencio Biascan, her appointment as such
may be questioned before the appellate
court by way of appeal.
It is thus clear that the Order dated April 2,
1981 may be the proper subject of an
appeal in a special proceeding. In special
proceedings, such as the instant proceeding
for settlement of estate, the period of appeal
from any decision or final order rendered
Faith Yancha
3B Wills Digests
therein is thirty (30) days, a notice of appeal
and a record on appeal being required. The
appeal period may only be interrupted by
the filing of a motion for new trial or
reconsideration. Once the appeal period
expires without an appeal or a motion for
reconsideration or new trial being perfected,
the decision or order becomes final.
2. The SC held in the negative, the
decision may no longer be appealed.
Considering that it was only June 6, 1981,
or a full fifty-eight (58) days after receipt of
the order, that a motion for reconsideration
was filed, it is clear that the same was filed
out of time. As such, when the said motion
for reconsideration was filed, there was no
more appeal period to interrupt as the Order
had already become final.
It is well-settled that judgment or orders
become final and executory by operation of
law and not by judicial declaration. Thus,
finality of a judgment becomes a fact upon
the lapse of the reglementary period of
appeal if no appeal is perfected or motion
for reconsideration or new trial is filed. The
trial court need not even pronounce the
finality of the order as the same becomes
final by operation of law. In fact, the trial
court could not even validly entertain a
motion for reconsideration filed after the
lapse of the period for taking an appeal. As
such, it is of no moment that the opposing
party failed to object to the timeliness of the
motion for reconsideration or that the court
denied the same on grounds other than
timeliness considering that at the time the
motion was filed, the Order dated April 2,
1981 had already become final and
executory. Being final and executory, the
trial court can no longer alter, modify, or
reverse the questioned order. The
 3B Wills Digests

subsequent filing of the motion for

reconsideration cannot disturb the finality of
the judgment or order.

Disposition:
WHEREFORE, premises considered, we
hereby DISMISS the petition for lack of
merit. The decision dated February 16,
1999 and the Resolution dated May 18,
1999 of the Court of Appeals are hereby
AFFIRMED.

SO ORDERED.

Faith Yancha
 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 preterition employed 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 re Morrow'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". 19 Express 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.

IRIS MORALES, Petitioner, vs. ANA MARIA
OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR.,
ALEJANDRO MORENO OLONDRIZ, ISABEL ROSA
OLONDRIZ and FRANCISCO JAVIER MARIA
OLONDRIZ, Respondents.
February 3, 2016
G.R. No.: 198994 Ponente: Brion, J.
Related Article: Tickler:
Art. 854 - Preterition Illegitimate child, preterition,
null and void will
Doctrine of the Case
Preterition is the complete and total omission of a
compulsory heir from the testator’s inheritance without
the heir’s express disinheritance. Under the Civil Code,
the preterition of a compulsory heir in the direct line
shall annul the institution of heirs, but the devises and
legacies shall remain valid insofar as the legitimes are
not impaired. Consequently, if a will does not institute
any devisees or legatees, the preterition of a
compulsory heir in the direct line will result in total
intestacy.
Parties – Roles
Alfonso Juan P. Olondriz, Sr. – decedent
Ana Maria Ortigas de Olondriz – widow and
respondent heir of decedent Alfonso Sr.
Alfonso Juan O. Olondriz, Jr., Alejandro Marino O.
Olondriz, Isabel Rosa O. Olondriz, Angelo Jose O.
Olondriz – legitimate children and respondent heirs of
decedent Alfonso Sr.
Francisco Javier Maria Bautista – illegitimate child
and respondent heir of decedent Alfonso Sr.
Iris Morales – petitioner who claims that Alfonso Sr.
left a will and that she’s the appointed executor and
administrator of the former’s estate
Facts
Alfonso Juan P. Olondriz, Sr., the decedent, died on
June 9, 2003. He was survived by his widow, Ana
Maria Ortigas de Olondriz, and his children: Alfonso
Juan O. Olondriz, Jr., Alejandro Marino O. Olondriz,
Isabel Rosa O. Olondriz, Angelo Jose O. Olondriz, and
Francisco Javier Maria Bautista Olondriz. His widow
and children are collectively referred to as the
respondent heirs.
Abbey Garcia
3B WILLS Digests
Believing that the decedent died intestate, the
respondent heirs filed a petition with the RTC for the
partition of the decedent’s estate and the appointment
of a special administrator. The RTC then appointed
Alfonso Juan O. Olondriz, Jr. as special administrator.
However, Iris Morales filed a separate petition with the
RTC alleging that the decedent left a will dated July 23,
1991. Morales prayed for the probate of the will and for
her appointment as special administratrix. The
decedent’s will indicated that Morales shall be the
executor and administrator of Alfonso Sr.’s estate until
its distribution. However, the will omitted Francisco
Javier Maria Bautista Olondriz, an illegitimate son of
the decedent.
Morales moved to suspend the intestate proceedings
in order to give way to the probate proceedings. But the
respondent heirs moved to dismiss the probate
proceedings because Francisco was preterited from
the will. Morales agreed to the holding of an evidentiary
hearing to resolve the issue of preterition however, she
failed to appear, effectively waiving her right to present
evidence on the issue of preterition.
The RTC, through Judge Gloria Butay Aglugub,
suspended the intestate proceedings reasoning that
probate proceedings take precedence over intestate
proceedings. The RTC also summarily revoked the
Letters of Administration previously issued to Alfonso
Jr.
The respondent heirs moved for reconsideration of the
summary revocation of the Letters of Administration.
They also moved for the inhibition of Judge Aglugub of
Branch 254. In 2006, the RTC granted the motion for
inhibition and the case was transferred to another
branch.
RTC Ruling:
The RTC resolved (1) the respondent heirs’ motion for
reconsideration of the revocation of the Letters of
Administration and (2) Morales’ motion to be appointed
Special Administratrix of the estate. The RTC noted
that while testacy is preferred over intestacy, courts will
not hesitate to set aside probate proceedings if it
appears that the probate of the will might become an
idle ceremony because the will is intrinsically void. It
reinstated Alfonso Jr. as administrator of the estate and
ordered the case to proceed in intestacy.
CA Ruling:
CA dismissed Morales’ petition for certiorari and
concluded that the RTC did not act with grave abuse of
discretion. The CA reasoned that while probate
 3B WILLS Digests

proceedings take precedence over intestate
proceedings, the preterition of a compulsory heir in the
direct line annuls the institution of heirs in the will and
opens the entire inheritance into intestate succession.
Thus, the continuation of the probate proceedings
would be superfluous and impractical because the
inheritance will be adjudicated intestate.
Issue/s
Whether the omission of the illegitimate who is a
compulsory heir in the direct line annuls the institution
of heirs (YES)
Whether it was proper for the RTC to pass upon the
intrinsic validity of the will during probate proceedings
and order the case to proceed intestate because of
preterition (YES)
Ruling
omission from the will leads to the conclusion of
his preterition.
During the proceedings in the RTC, Morales had the
opportunity to present evidence that Francisco
received donations inter vivos and advances on his
legitime from the decedent. However, Morales did not
appear during the hearing dates, effectively waiving
her right to present evidence on the issue.
The general rule is that in probate proceedings, the
scope of the court’s inquiry is limited to questions on
the extrinsic validity of the will; the probate court will
only determine the will’s formal validity and due
execution. However, this rule is not inflexible and
absolute. It is not beyond the probate court’s
jurisdiction to pass upon the intrinsic validity of
the will when so warranted by exceptional
circumstances. When practical considerations
demand that the intrinsic validity of the will be passed
upon even before it is probated, the probate court
should meet the issue.

The decedent’s will does not contain specific

The Court ruled in the affirmative.
legacies or devices and Francisco’s preterition
annulled the institution of heirs. The annulment
Preterition consists in the omission of a compulsory
effectively caused the total abrogation of the will,
heir from the will, either because he is not named or,
resulting in total intestacy of the inheritance. The
although he is named as a father, son, etc., he is
decedent’s will, no matter how valid it may appear
neither instituted as an heir nor assigned any part of
extrinsically, is null and void. The conduct of separate
the estate without expressly being disinherited – tacitly
proceedings to determine the intrinsic validity of its
depriving the heir of his legitime. Preterition requires
testamentary provisions would be superfluous. Thus,
that the omission is total, meaning the heir did not also
the RTC committed no error for ordering the case to
receive any legacies, devises, or advances on his
proceed intestate.
legitime.

In other words, preterition is the complete and total

omission of a compulsory heir from the testator’s Disposition:
inheritance without the heir’s express
disinheritance. Wherefore, the petition is DISMISSED. Costs against
the petitioner.
Under Art. 854 of the Civil Code, the preterition of
a compulsory heir in the direct line shall annul the
institution of heirs, but the devises and legacies
shall remain valid insofar as the legitimes are not
impaired. Consequently, if a will does not institute any
devisees or legatees, the preterition of a compulsory
heir in the direct line will result in total intestacy.

In the present case, the decedent’s will evidently

omitted Francisco Olondriz as an heir, legatee, or
devisee. As the decedent’s illegitimate son,
Francisco is a compulsory heir in the direct line.
Unless Morales could show otherwise, Francisco’s

Abbey Garcia

The Incompetent, CARMEN CAÑIZA, represented
by her legal guardian, AMPARO EVANGELISTA vs.
CA (SPECIAL FIRST DIVISION), PEDRO ESTRADA
and his wife, LEONORA ESTRADA
February 24, 1997
G.R. No. 110427 NARVASA, C.J.
Related Article: Tickler: ejection suit; taking
Art 838 back property devised to
generate income
Doctrine of the Case
A will is essentially ambulatory; at any time prior to the
testator's death, it may be changed or revoked; and
until admitted to probate, it has no effect whatever and
no right can be claimed thereunder, the law being quite
explicit: "No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court" (ART. 838).
Parties – Roles
● Carmen Cañiza - testatrix
● Amparo Evangelista - appointed judicial/legal
guardian
● The Estradas - family temporarily staying at
Cañiza’s house free of rent; to whom the house
was devised to
Facts
In 1989, Carmen Cañiza, 94y/o, a spinster, retired
pharmacist, and former professor of College of
Chemistry and Pharmacy of the UP, was declared
incompetent by RTC judgment in a guardianship
proceeding instituted by her niece, Amparo
Evangelista, because of advanced age and physical
infirmities which included cataracts in both eyes and
senile dementia. Evangelista was appointed legal
guardian of her person and estate.
Cañiza was the owner of a house and lot. In 1990,
Amparo Evangelista commenced a suit to eject the
spouses Pedro and Leonora Estrada, with incompetent
Cañiza as plaintiff.
It alleged that Cañiza was the absolute owner of the
property; that out of kindness, she had allowed the
Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house,
rent-free; Cañiza already had urgent need of the house
on account of her advanced age and failing health, "so
funds could be raised to meet her expenses for
support, maintenance and medical treatment;" that
through her guardian, Cañiza had asked the Estradas
Izel Tan
3B Wills Digests
verbally and in writing to vacate but they had refused to
do so; and that "by the defendants' act of unlawfully
depriving plaintiff of the possession of the house in
question, they were enriching themselves at the
expense of the incompetent, because, while they were
saving money by not paying any rent, the incompetent
was losing much money as her house could not be
rented by others."
Defendants claim that they had been living in Cañiza's
house since the 1960's; that in consideration of their
faithful service they had been considered by Cañiza as
her own family, and the latter had executed a
holographic will in 1988 where she "bequeathed" to the
Estradas the house and lot.
MeTC Ruling:
MeTC ruled in Cañiza's favor, the Estradas being
ordered to vacate the premises.
RTC Ruling:
RTC reversed.
CA Ruling:
CA affirmed, ruling that defendants have been in the
property as an adopted family of Cañiza," as evidenced
by a holographic will; and while "said will, unless and
until it has passed probate by the proper court, could
not be the basis of defendants' claim to the property, it
is indicative of intent and desire that defendants are to
remain in their occupancy and possession, so much so
that Cañiza's supervening incompetency can not be
said to have vested in her guardian the right or
authority to drive the defendants out."
Cañiza died and her heirs (Evangelista as neice + one
nephew) substituted for her.
Issue/s
Whether CA erred in giving weight to "a xerox copy of
an alleged holographic will, which is irrelevant (YES)
Ruling
The Estradas' possession of the house stemmed from
the owner's express permission. That permission was
subsequently withdrawn by the owner, as was her
right; and it is immaterial that the withdrawal was made
through her judicial guardian, the latter being
indisputably clothed with authority to do so.
Nor is it of consequence that Cañiza executed a will
bequeathing the property to the Estradas; that
circumstance did not give them the right to stay in the
premises after demand to vacate on the theory that
 3B Wills Digests

they might in future become owners thereof, that right certiorari — is REVERSED and SET ASIDE, and the
of ownership being at best inchoate, no transfer of Decision dated April 13, 1992 of the Metropolitan Trial
ownership being possible unless and until the will is Court of Quezon City, Branch 35, in Civil Case No.
duly probated. 3410 is REINSTATED and AFFIRMED. Costs against
private respondents.
Thus, at the time of the institution of the action of
desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or
sufferance, or as owners. They could not assert any
right of possession flowing from their ownership of the
house; their status as owners is dependent on the
probate of the holographic will by which the property
had allegedly been bequeathed to them — an event
which still has to take place. IOW: prior to the probate
of the will, any assertion of possession by them would
be premature and inefficacious.

The Estradas insist that the devise of the house to

them by Cañiza denotes her intention that they remain
in possession, and legally incapacitated her guardian,
Evangelista, from evicting them therefrom, since their
ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the

testator's death, it may be changed or revoked; and
until admitted to probate, it has no effect whatever and
no right can be claimed thereunder, the law being quite
explicit: "No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court" (ART. 838).

An owner's intention to confer title in the future to

persons possessing property by his tolerance, is not
inconsistent with the former's taking back possession
in the meantime for any reason deemed sufficient. And
that in this case there was sufficient cause for the
owner's resumption of possession is apparent: she
needed to generate income on account of the physical
infirmities afflicting her, arising from her extreme age.

Evangelista was appointed by a competent court the

general guardian of both the person and the estate of
her aunt, Cañiza. It became her duty to care for her
aunt's person. The right to manage the ward's estate
carries with it the right to take possession thereof and
recover it from anyone who retains it, and bring and
defend such actions as may be needful for this
purpose.

Disposition:
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals promulgated on June
2, 1993 — affirming the Regional Trial Court's
judgment and dismissing petitioner's petition for

Izel Tan

LORENZO PECSON vs. AUGUSTIN CORONEL ET
AL.
October 11, 1923
G.R. No.: 20374 Ponente: J. Romualdez
Related Article: Tickler:
Doctrine of the Case
The fact that the only heir named in the will is appointed
executor is no proof that the testator's intention was
that said executor should distribute the estate among
the relatives of the testator, and not that said executor,
named as sole heir, should get all the estate; for to be
an heir is not incompatible with being an executor,
inasmuch as the function of an executor is not limited
merely to distributing the inheritance, but he has other
duties and powers, such as to preserve, defend, and
liquidate the inheritance until it is delivered to the
person entitled to it.
Parties – Roles
Dolores Coronel – deceased/testator
Lorenzo Pecson – married to Angela Coronel,
Dolores’ niece/ all properties of Dolores were
given to him
Augustin Coronel et al. – blood relatives of
Dolores
Vicente Francisco - lawyer
Facts
The court of Pampanga probated the last will and
testament of Dolores Coronel giving to Lorenzo
Pecson, who is married to her niece, Angela Coronel,
all of her properties, both movable and immovable. She
also assigned Lorenzo Pecson as the executor of all
that is willed and ordained in her will, without bond, and
should he not perform his duties, she assigned her
grandson, Victor Pecson, as a substitute executor.
She also requested Vicente Francisci to write her name
at the foot and on the left margin of each of the sheets
of the will.
RTC Ruling:
CA Ruling:
[Faye G. Ramirez]
3B [WILLS] Digests
Issue/s
The probate of this will is impugned on the following
grounds:
(a) That the proof does not show that the document
Exhibit A above copied contains the last will of Dolores
Coronel (NO)
(b) that the attestation clause is not in accordance with
the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645. (NO)
Ruling
As to the first, which is the one raised in the first
assignment of error, the appellants argue: First, that it
was improbable and exceptional that Dolores Coronel
should dispose of her estate, as set forth in the
document Exhibit A, her true will being that the same
be distributed among her blood relatives; and second,
that if such will was not expressed in fact, it was due to
extraneous illegal influence.
The opponents contend that it was not, nor could it be,
the will of the testatrix, because it is not natural nor
usual that she should completely exclude her blood
relatives from her vast estate, in order to will the same
to one who is only a relative by affinity, there appearing
no sufficient motive for such exclusion, inasmuch as
until the death of Dolores Coronel, she maintained very
cordial relations with the aforesaid relatives who had
helped her in the management and direction of her
lands. It appears, however, from the testimony of
Attorney Francisco (page 71, transcript of the
stenographic notes) that Dolores revealed to him her
suspicion against some of her nephews as having
been accomplices in a robbery of which she had been
a victim.
1. The appellants emphasize the fact that family ties in
this country are very strongly knit and that the exclusion
of relative from one's estate is an exceptional case. It
is true that the ties of relationship in the Philippines are
very strong, but we understand that cases of preterition
of relatives from the inheritance are not rare. The liberty
to dispose of one's estate by will when there are no
forced heirs is rendered sacred by the Civil Code in
force in the Philippines since 1889.
Even ignoring the precedents of this legal precept, the
Code embodying it has been in force in the Philippines
for more than a quarter of a century, and for this reason
it is not tenable to say that the exercise of the liberty

thereby granted is necessarily exceptional, where it is
not shown that the inhabitants of this country whose
customs must have been taken into consideration by
the legislator in adopting this legal precept, are averse
to such a liberty.
As to the preference given to Lorenzo Pecson, it is not
purely arbitrary, nor a caprice or a whim of the moment.
The proof adduced by this appellee, although
contradicted, shows by a preponderance of evidence
that besides the services which the opponents admit
had been rendered by him to Dolores Coronel since the
year 1914, he had also rendered services prior to that
time and was the administrator and manager of the
affairs of said Dolores in the last years of her life. And
that this was not a whim of the moment is shown by the
fact that six years before the execution of the will in
question, said Lorenzo Pecson was named and
appointed by Dolores Coronel as her sole heir in a
document made by the latter as a will supposedly.
The appellants find in the testament Exhibit B
something to support their contention that the intention
of Dolores Coronel was to institute the said Pecson not
as sole beneficiary, but simply as executor and
distributor of all her estate among her heirs, for while
Lorenzo Pecson's contention that he was appointed
sole beneficiary is based on the fact that he enjoyed
the confidence of Dolores Coronel in 1918 and
administered all her property, he did not exclusively
have this confidence and administration in the year
1912. Although such administration and confidence
were enjoyed by Pecson always jointly with others and
never exclusively, this fact does not show that the will
of the testatrix was to appoint Pecson only as executor
and distributor of her estate among the heirs, nor does
it prevent her, the testatrix, from instituting him in 1912
or 1918 as sole beneficiary; nor does it constitute,
lastly, a test for determining whether or not such
institution in favor of Pecson was the true will of the
testatrix.
The court finds, therefore, nothing strange in the
preterition made by Dolores Coronel of her blood
relatives, nor in the designation of Lorenzo Pecson as
her sole beneficiary. Furthermore, although the
institution of the beneficiary here would not seem the
most usual and customary, still this would not be null
per se.
In the absence of any statutory restriction every person
possesses absolute dominion over his property, and
may bestow it upon whomsoever he pleases without
regard to natural or legal claim upon his bounty. If the
testator possesses the requisite capacity to make a
will, and the disposition of his property is not affected
by fraud or undue influence, the will is not rendered
invalid by the fact that it is unnatural, unreasonable, or
unjust.
[Faye G. Ramirez]
3B [WILLS] Digests
The opponents call our attention to the fourth clause of
the document which says: "I name and appoint my
aforesaid nephew, Lorenzo Pecson, executor of all that
is willed and ordained in this my will, without bond.
Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and
appoint as a substitute executor my grandson Victor
Pecson, resident of the town of Betis, without requiring
him to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as sole
beneficiary of all her estate, for if such was the intention
of the testatrix, there would have been no necessity of
appointing an executor, nor any reason for designating
a substitute in case that the first one should not be able
to discharge his duties, and they perceived in this
clause the idea which, according to them, was not
expressed in the document, and which was that
Pecson was simply to be a mere executor entrusted
with the distribution of the estate among the relatives
of the testatrix, and that should he not be able to do so,
this duty would devolve upon his substitute.
But it is not the sole duty of an executor to distribute
the estate, which in testate succession, such as the
instant case, has to be distributed with the intervention
of the court. An executor has, besides, other duties and
general and special powers intended for the
preservation, defense, and liquidation of the estate so
long as the same has not reached, by order of the
court, the hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of
an executor does not imply a negation of her desire to
will all her estate to Lorenzo Pecson. It is to be noted,
furthermore, that in the will, it was ordered that her
body be given a burial in accordance with her social
standing and she had a perfect right to designate a
person who should see to it that this order was
complied with. One of the functions of an executor is
the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her
estate to her blood relatives, for such was the promise
made to Maria Coronel, whom Rosario Coronel tens to
corroborate. We do not find such a promise to have
been sufficiently proven, and much less to have been
seriously made and coupled with a positive intention on
the part of Dolores Coronel to fulfill the same. In the
absence of sufficient proof of fraud, or undue influence,
we cannot take such a promise into account, for even
if such a promise was in fact made, Dolores Coronel
could retract or forget it afterwards and dispose of her
estate as she pleased.
The disputed phrase "in order that the latter might
dispose of the estate in the most appropriate manner"
was used by the witness Reyes while sick in a hospital
and testifying in the course of the taking of his
deposition.
 3B [WILLS] Digests

The appellants interpret the expression "dispose in the
most appropriate manner" as meaning to say
"distribute it among the heirs." Limiting ourselves to its
meaning, the expression is a broad one, for the
disposition may be effected in several and various
ways, which may not necessarily be a "distribution
among the heirs." and still be a "disposition in the most
appropriate manner." "To dispose" is not the same as
" to distribute."
"The court may correct clerical mistakes in writing, and
disregard technical rules of grammar as to the
construction of the language of the will when it
becomes necessary for it to do so in order to effectuate
the testator's manifest intention as ascertained from
the context of the will. But unless a different
construction is so required the ordinary rules of
grammar should be adhered to in construing the will."
(40 Cyc., 1404).

As to whether or not the burden of proof was on the

petitioner to establish that he was the sole legatee to
the exclusion of the relatives of Dolores Coronel, the
court understand that it was not his duty to show the
reasons which the testatrix may have had for excluding
her relatives from her estate, giving preference to him. Disposition:
His duty was to prove that the will was voluntary and
authentic and he, who alleges that the estate was In conclusion we hold that the assignments of error
willed to another, has the burden of proving his made by the appellants are not supported by the
allegation. evidence of record.

The data furnished by the case do not show, to our The judgment appealed from is affirmed.
mind, that Dolores Coronel should have had the
intention of giving her estate to her blood relatives
instead of to Lorenzo Pecson at the time of the
execution of the will Exhibit A, nor that fraud or
whatever other illegal cause or undue influence should
have intervened in the execution of said testament.
Neither fraud nor evil is presumed and the record does
not show either.

2. Appellants remark that it is not stated in this clause

that the will was signed by the witnesses in the
presence of the testatrix and of each other, as required
by section 618 of the Code of Civil Procedure, as
amended, which on this particular point provides the
following:

"The attestation shall state the number of sheets or

pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof,
or caused some other person to write his name, under
his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will
and all pages thereof in the presence of the testator
and of each other."

The court believes it to be more reasonable to construe

the disputed phrase "of others" as meaning "of the
others witnesses," and that a grammatical or clerical
error was committed consisting in the omission of the
article "the."

Grammatical or clerical errors are not usually

considered of vital importance when the intention is
manifest in the will.

[Faye G. Ramirez]
 G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

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

PARAS, J.:

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

The dispositive portion of the questioned decision reads as follows:

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

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

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

THIRD: All my shares that I may receive from our properties. house, lands and money
which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother
SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all
the money properties, lands, houses there in Bantayan and here in Cebu City which
constitute my share shall be given to me to his children, namely: Anita, Constantino,
Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591
ACEB

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

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

Respondent Intermediate Appellate Court granted private respondents' petition and

ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain
in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition
for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6).
Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

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

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

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

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

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

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

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

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

Article 854 of the Civil Code provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.